Ian Freckelton AO KC

University of Melbourne, Melbourne Law School, Faculty Member

Monash University, Law Faculty, Faculty Member

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Ian Freckelton is a King's Counsel in full-time practice as a barrister throughout Australia and is a former Judge of the Supreme Court of Nauru. He is also a Professor of Law and Professorial Fellow in Psychiatry at the University of Melbourne, an Adjunct Professor of Forensic Medicine at Monash University, an Adjunct Professor of Law at La Trobe University, an Adjunct Professor at the Queensland University of Technology and an Adjunct Professor of Health Science at the Auckland University of Technology. He was the Commissioner at the Victorian Law Reform Commission in charge of its reference on Medicinal Cannabis and a member of the Australian Commonwealth Government Advisory Committee on the Medicinal Use of Cannabis. He was a member of the Mental Health Tribunal of Victoria for 25 years and the Victorian Bar Council for 5 years. He is an inaugural member of the coronial Council of Victoria (since 2010). He is an honorary life member of the Australian and New Zealand Association of Psychiatry, Psychology and Law. He is the Editor of the Journal of Law and Medicine and the Founding Editor of Psychiatry, Psychology and Law. He is an elected Fellow of the Australian Academy of Health and Medical Sciences, the Australian Academy of Law, the Academy of Social Sciences Australia and the Australian College of Legal Medicine.

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Papers by Ian Freckelton AO KC

The 1628 Vasa Inquest in Sweden: Learning Contemporary Lessons for Effective Death Investigation

PubMed, Dec 1, 2018

Much that is constructive can be achieved from analysis of death investigations that have failed ... more Much that is constructive can be achieved from analysis of death investigations that have failed to achieve desirable outcomes in terms of learning lessons about risks to health and safety and in terms of gaining an understanding as to how further tragedies can be avoided. This article reviews an "inquest" into the sinking in 1628 of the pride of the Swedish Navy, the Vasa, and the factors that led to the inquest failing to come to grips with the various design, building, oversight, subcontracting, communication, and co-ordination flaws that contributed to the vessel being foreseeably unstable and thus unseaworthy. It argues that Reason's Swiss cheese analysis of systemic contributions to risk and modern principles of Anglo-Australasian-Canadian death investigation shed light on how a better investigation of the tragedy that cost 30 lives and a disastrous loss of a vessel of unparalleled cost to the Kingdom of Sweden could have led to more useful insights into the multifactorial causes of the sinking of the Vasa than were yielded by the inquest.

Tourette's disorder and the Criminal Law

PubMed, Dec 1, 2019

Tourette's disorder is a stigmatising developmental neuropsychiatric disorder usually commencing ... more Tourette's disorder is a stigmatising developmental neuropsychiatric disorder usually commencing in early childhood and lasting for varying periods and intensities, with persistence into adulthood for about one-third of those affected as children. The potential forensic relevance of the disorder, in the context of its common comorbidities, is relatively little appreciated among forensic psychiatrists and psychologists, legal practitioners and judicial officers in spite of the fact that a significant number of young persons and adults with Tourette's disorder are charged with criminal offences. This editorial reviews the clinical and forensic literature, about the disorder, as well as significant superior court and appellate judgments and argues for better education about the relevance of the disorder for assessments of criminal culpability, likelihood of recidivism and the consequences of custodial confinement for offenders with Tourette's disorder. It identifies areas for constructive further research.

Medically assisted suicide: Recent jurisprudence and the challenges for law reform

PubMed, Jun 1, 2016

Decisions on the issue of medically assisted suicide were delivered within a two-year period by t... more Decisions on the issue of medically assisted suicide were delivered within a two-year period by the Supreme Court of Ireland (Fleming v Ireland [2013] IESC 19), the Supreme Court of Canada (Carter v Canada (Attorney General) [2015] 1 SCR 331; 2015 SCC 5), the High Court of South Africa (Stransham-Ford v Minister of Justice and Correctional Services 2015 (4) SA 50; [2015] 3 All SA 109; [2015] ZAGPPHC 230 (GP)), and the High Court of New Zealand (Seales v Attorney-General [2015] 3 NZLR 556; [2015] NZHC 1239). This editorial scrutinises the jurisprudence generated by the decisions, identifies their ramifications and argues that it is likely that the combination of the carefully constructed judgments, together with their reception by the legal, medical and general communities, will lead to an increasing impetus for end-of-life law reform in many countries. It reviews the June 2016 report of the Legal and Social Issues Committee of the Legislative Council of the Victorian Parliament as an example of such reform initiatives. The challenge for those who wish to construct such changes to the law is to fashion legislative regimes which provide adequate protection to patients, as well as to the life-saving culture of medicine, and to safeguard dignity but ensure that respect for the quality of life is not eroded by pressures to end lives that some regard as no longer having value.

Doctors, Defamation and Damages: Medical Practitioners Fighting Back

PubMed, Oct 1, 2019

In three judgments in favour of New South Wales medical practitioners between 2017 and 2019 the S... more In three judgments in favour of New South Wales medical practitioners between 2017 and 2019 the Supreme Court awarded ordinary and aggravated damages for harm done to professional reputations. The decisions in Al Muderis v Duncan (No 3) [2017] NSWSC 726, O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 and Tavakoli v Imisides (No 4) [2019] NSWSC 7 are considered in the context of international decisions and analysis of doctors taking defamation action arising from online publications. Reflections are provided about the repercussions of the phenomenon, its commercial justification and the inhibitions that should be experienced before defamation and injurious falsehood actions are taken by medical practitioners.

Concussion, Defamation and the Ringside Doctor

PubMed, Oct 1, 2019

Ringside doctors play a vital public health role in protecting fighters from the deleterious effe... more Ringside doctors play a vital public health role in protecting fighters from the deleterious effects of concussive and other injuries which are reasonably foreseeable from the contests in which they engage. This column reviews a landmark action for defamation taken by a ringside doctor against a media organisation that published a critique of his performance of his role in a high-profile boxing bout in Sydney, Australia. It reviews the judgment of McCallum J in O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 (O'Neill) and reflects on the broader significance of the decision for the role played by ringside doctors while boxing and other martial arts contests continue to be permitted by law.

The Complementary Medicine Insurance Wars: The Unresolved but Politicised Australian Theatre of Combat

PubMed, Oct 1, 2019

Debates have taken place for many years internationally, including in Australia, about the therap... more Debates have taken place for many years internationally, including in Australia, about the therapeutic effectiveness and safety of complementary/alternative medicine (CAM). The issues raised in such disputation go beyond the capacity for patients to make choices informed by contemporary knowledge about the status of such disciplines and the accuracy of claims made by the various stakeholders. As government subsidises rebates under private health insurance for a number of modalities of health care, the entitlements of CAM disciplines to such rebates have become controversial. This editorial traces Australian reports since 2010 about the eligibility for insurance rebates of a number of CAM disciplines and calls for the current 2019-2020 review by the Chief Medical Officer to engage in a fair, rigorous and conclusive evaluative process, utilising as its yardstick contemporary evidence about treatment efficacy. Such a process has the potential to bring to an end disputation that has only served to confuse patient decision-making, cater to vested interests and incur for government costs that cannot properly be justified.

Guidance on Prescription of Homeopathic Treatments: Ramifications of a Failed Administrative Law Challenge

PubMed, Oct 1, 2019

In R (on the application of British Homeopathic Association) v National Health Service Commission... more In R (on the application of British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) Supperstone J of the High Court of England and Wales delivered an internationally significant judgment on the processes required to be engaged in when guidance is given to medical practitioners about their involvement in homeopathic prescribing. This column explores the bases upon which the challenge by the British Homeopathic Association was lost and the repercussions of the judgment for the practice of non-evidence-based modalities, such as homeopathy.

Postmortem: How Examiners Explain Suspicious Deaths

Journal of law and medicine, 2008

Competence in the law: from legal theory to clinical approach

Psychiatry, Psychology and Law, 2009

Mapping Fate: A Memoir of Family, Risk and Genetic Research; The Woman Who Walked into the Sea: Huntington's and the Making of a Genetic Disease

Journal of law and medicine, 2010

Mandated treatment for seriously ill minors

Health Law: The Past and the Future

PubMed, Jul 1, 2018

In the first 25 years of the Journal of Law and Medicine issues relating to abortion, euthanasia,... more In the first 25 years of the Journal of Law and Medicine issues relating to abortion, euthanasia, turning off of life support, pandemics, cloning, surrogacy, technological change, patenting of DNA, regulation of health practitioners, health services in the Information and Genomic eras, mental health law, elder law, and medical negligence have figured prominently in the published scholarly contributions. This editorial reflects on the evolution of health law in its many aspects, contrasting issues that were contentious in 1993 with those that are in 2018 and reflecting on what is likely to continue to attract interdisciplinary analysis and the need for critical evaluation in the decades ahead.

Aboriginal and Torres Strait Islander health practitioner regulation

PubMed, Mar 1, 2014

An aspect of the much needed efforts to "close the gap" in Indigenous health disadvantage in Aust... more An aspect of the much needed efforts to "close the gap" in Indigenous health disadvantage in Australia has been workforce reform. This has included targeted training for general practitioners and has also been characterised by sensitising of psychiatrists to the particular mental health needs of persons of Aboriginal and Torres Strait Islander background. It has also incorporated increasing involvement by Indigenous persons in providing health services. In 2012, each Australian State and Territory constituted the Aboriginal and Torres Strait Islander Health Practice Board to regulate and register Indigenous health practitioners. This marked an important recognition of the contribution able to be made by this complementary component of the Australian health workforce which is particularly enabled to understand and meet the needs of Indigenous persons. This column chronicles the first steps of the new regulatory board and identifies issues which face it.

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The Medico-Scientific Marginalisation of Homeopathy: International Legal and Regulatory Developments

PubMed, Sep 1, 2015

The 2010 report of the United Kingdom Science and Technology Committee of the House of Commons an... more The 2010 report of the United Kingdom Science and Technology Committee of the House of Commons and the 2015 report of the Australian National Health and Medical Research Council have overtaken in significance the uncritical Swiss report of 2012 and have gone a long way to changing the environment of tolerance toward proselytising claims of efficacy in respect of homeopathy. The inquiry being undertaken in the United States by the Food and Drug Administration during 2015 may accelerate this trend. An outcome of the reports and inquiries has been a series of decisions from advertising regulators and by courts rejecting medically unjustifiable claims in respect of the efficacy of homeopathy. Class actions have also been initiated in North America against manufacturers of homeopathic products. The changing legal and regulatory environment is generating an increasingly scientifically marginalised existence for homeopathy. That new environment is starting to provide effective inhibition of assertions on behalf of homeopathy and other health modalities whose claims to therapeutic efficacy cannot be justified by reference to the principles of evidence-based health care. This has the potential to reduce the financial support that is provided by insurers and governments toward homeopathy and to result in serious liability exposure for practitioners, manufacturers and those who purvey homeopathic products, potentially including pharmacists. In addition, it may give a fillip to a form of regulation of homeopaths if law reform to regulate unregistered health practitioners gathers momentum, as is taking place in Australia.

COVID-19 Curfews: Kenyan and Australian Litigation and Pandemic Protection

PubMed, Dec 1, 2020

Historically and etymologically, curfews are public health measures imposed to guard against risk... more Historically and etymologically, curfews are public health measures imposed to guard against risks to health and safety. On occasion they have been deployed oppressively, disproportionately and without proper regard to their ramifications. It is important that they not be used during a pandemic unless there is sufficient medico-scientific reason to conclude that they will serve a constructive purpose and that they are the least restrictive available governmental response. Inevitably, they impact adversely on a variety of human rights, particularly freedom of movement. They isolate and inhibit human connection. However, in the context of a worldwide pandemic causing terrible loss of life, there are occasions where they may be a necessary adjunct to these restrictions. This article identifies a variety of scenarios in which curfews have been imposed on different populations and identifies legal challenges that have been made to them. In the context of the COVID-19 pandemic it reviews the Kenyan judgment of Law Society of Kenya v Mutyambai [2020] eKLR and the Victorian Supreme Court judgment of Loielo v Giles [2020] VSC 722. It contends that the carefully reasoned decisions in each instance constitute an important reassurance that decision-making about a lengthy curfew in order to reduce the spread of the COVID-19 virus was reasoned, rights-aware and suitably responsive to the risks posed.

Practice manual for tribunals

Medicinal Cannabis Law Reform in Australia

PubMed, Mar 1, 2016

Attempts at medicinal cannabis law reform in Australia are not new. However, in historical perspe... more Attempts at medicinal cannabis law reform in Australia are not new. However, in historical perspective 2015 and 2016 will be seen as the time when community debate about legalisation of medicinal cannabis reached a tipping point in a number of Australian jurisdictions and when community impetus for change resulted in major reform initiatives. In order to contextualise the changes, the August 2015 Report of the Victorian Law Reform Commission (VLRC) and then the Access to Medicinal Cannabis Bill 2015 (Vic) introduced in December 2015 into the Victorian Parliament by the Labor Government are scrutinised. In addition, this editorial reviews the next phase of developments in the course of 2015 and 2016, including the Commonwealth Narcotic Drugs Amendment Act 2016 and the Queensland Public Health (Medicinal Canna- bis) Bill 2016. It identifies the principal features of the legislative initiatives against the backdrop of the VLRC proposals. It observes that the principles underlying the Report and the legislative developments in the three Australian jurisdictions are closely aligned and that their public health approach, their combination of evidence-based pragmatism, and their carefully orchestrated checks and balances against abuse and excess constitute a constructive template for medicinal cannabis law reform.

COVID-19 Denialism, Vaccine Scepticism and the Regulation of Health Practitioners

Journal of law and medicine, Mar 1, 2021

During a pandemic such as COVID-19 fear, anxiety and paranoia can become prevalent within the com... more During a pandemic such as COVID-19 fear, anxiety and paranoia can become prevalent within the community. Agnotology has taught us that in such times science denialism and vaccination scepticism can gain a foothold and discourage the undiscerning and the uninformed from receiving the treatment and prophylactic public health measures that are essential to community health and safety. When health practitioners endorse such attitudes they pose a serious risk to not only their patients but the whole community. This requires a robust response from health practitioner regulators, disciplinary tribunals and courts. This column identifies such a sensible and proportionate response from the Irish High Court in Medical Council v Waters [2021] IEHC 252 when a general practitioner's registration to practise was suspended for promoting such views. The decision, along with a comparable decision by the Victorian Civil and Administrative Tribunal in 2020 constitute potent international examples of a robust and commonsense regulatory endorsement of science during a time of public health crisis.

Methamphetamine-induced Psychosis and Mental Impairment: A Challenge from New Zealand

PubMed, Dec 1, 2019

While knowledge about chronic amphetamine-induced psychosis and its similarity to schizophrenia i... more While knowledge about chronic amphetamine-induced psychosis and its similarity to schizophrenia is at an early stage, its incidence and ramifications are posing a serious issue for the criminal law. The condition has the potential in principle to result in findings of insanity/mental impairment and diminished responsibility, as well as to be significantly mitigating at the time of sentencing. However, difficult legal questions arise as to whether an ongoing (as against transient) chronic methamphetamine-induced psychosis constitutes a "disease of the mind" as well as complex public policy issues by reason of the condition being self-induced. This column reviews the law generally on the subject, as well as the ruling by Jagose J in R v Brackenridge [2019] NZHC 1004, and explores the ramifications of the reasoning in the ruling for decisions by courts outside New Zealand. It calls for further and more nuanced analysis of the ramifications of drug-induced psychoses being self-induced in the context of the law on criminal responsibility and culpability.

Responding Better to Desperate Parents: Warnings from the Alfie Evans Saga

PubMed, Jul 1, 2018

The end-of-life litigation involving Alfie Evans (9 May 2016 - 28 April 2018) from Liverpool, Eng... more The end-of-life litigation involving Alfie Evans (9 May 2016 - 28 April 2018) from Liverpool, England, who suffered from an incurable and degenerative neurological condition was extraordinary. It emerged in the shadow of comparable but not as extensive litigation enabled by crowdfunding in relation to Ashya King and Charlie Gard. Although Alfie's parents lost repeatedly in the High Court, the Court of Appeal and the Supreme Court of England, as well as before the European Court of Human Rights, they persisted in bringing more legal challenges. The public relations campaign on their behalf at times was threatening and accusatory of the clinicians and of Alder Hey Hospital. Both persons employed at the Christian Legal Centre, which represented the parents at times, and medical practitioners from Europe who participated in forensic assessments behaved unethically. There are many lessons to be learned from the Alfie Evans saga. If we are to maintain morale and commitment among those who provide paediatric clinical services to the very ill and the dying, they must be protected from the public relations and litigation campaigns deployed by those purporting to represent the Alfie Evans family, and better non-adversarial methods need to be constructed as a matter of urgency to resolve matters involving disagreements about the treatment of terminally ill children.

Ian Freckelton AO KC

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