Principal methods for healthcare research The WritePass Journal

Principal methods for healthcare research Introduction Principal methods for healthcare research IntroductionTheir Respective Research Design and philosophyThe Contrasting   Research HypothesizesApproaches to samplingData Collection Methods and Data analysisQuality of studiesCriteria to establish rigor in qualitative methods. Patton (2002) p.552-558Study:Jeppson et al (2003)Binge and Purge Processes in Bulimia Nervosa: A Qualitative StudyMy interpretationQuestionDiscussionRelated Introduction Bulimia Nervosa (BN) is an eating disorder, which is characterised by repeated episodes of over eating and bingeing and by a set of   compensatory behaviours intended to cause weight loss which includes vomiting, purging, fasting and excessive exercise. The American Psychiatric society (A.P.A. DSM-IV, 2000) and the World Health Organisation ( World Health Organization. International Statistical Classification of Diseases, 10th Revision (ICD-10). Geneva, Switzerland: W.H.O., 1992),   both suggest the following diagnostic criteria for the disorder 1. A persistent preoccupation with eating and irresistible craving for food. 2 .Repeated episodes of binging/overeating in which large quantities /amounts of food are   consumed 3. Patients experiencing BN take excessive measures to compensate for the ‘fattening‘  Ã‚   effects of food e.g. vomiting, purging and fasting. The Beating Eating Disorder Association (BEAT). Formerly known as the Eating Disorders Association, a voluntary sector group in the UK., as provided figures that up to 1.15 million people in the UK, experience a significant problem with BN, and up to 90.000 people are receiving treatment at any one time. It is not therefore surprising that BN is a major and widespread   problem. Consequently a number of treatments have been developed and trialled, based on focused research, and developing an evidence base. The National Institute of Clinical Excellence (NICE). Published guidance in 2004, (Eating disorders: Core interventions in the treatment and management of anorexia nervosa, bulimia nervosa and related eating disorders. London: National Institute for Health and Clinical Excellence (NICE) 2004). Which recommends Cognitive Behavioural therapy (CBT) as an efficacious treatment as well as Selective Serotonin Re-uptake Inhibitors (SSRI’s) such as Fluoxetine. Research in this area is an important on a number of counts. Firstly, on clinical intervention grounds so that the treatment offered for the disorder can be expanded and improved and secondly given that the Disorder was only recognised in 1979 ( Russell, G.1979), and with a widespread epidemiology, sufferers experiences of t he disorder are important in clinical practice to deepen understanding of sufferers experiences.. The two papers presented here both focus on the condition from different perspectives and   ask different questions. The first paper is a qualitative study: Binge and purge Processes in Bulimia Nervosa: A Qualitative Investigation (Jeppson et al. 2003) using a grounded theory design focusing on the two core diagnostic behaviours of BN; binging and purging. They aimed to elucidate information on these processes and their function for Bulimic’s experience. The second paper is a comparative intervention study, following a quantitative research design a   form of Randomised Control Trial (RCT) Cognitive-Behavioural, Fluoxetine and Combined Treatment for Bulimia Nervosa: Short- and Long-term Results (Jacobi et al.2002). Both papers illustrate their design paradigms and contain a number of flaws, which will be discussed in relation to their respective research methods. Their Respective Research Design and philosophy Jeppson et al(2003), deployed a qualitative research design, which followed a grounded theory approach (Glaser Strauss,1967). Grounded theory was originally developed by these social researchers, before the approach ‘split’ into different camps, (Stebbins, R.A., 2001),   the approach essentially emphasizes the ’generation of theory’ from data that is acquired in the actual process of conducting the research. So rather than beginning with an hypothesis that needs to be tested   that is the hallmark of the experimental quantitative research design, grounded theory begins the research process with an aim for exploration. The quantitative paradigm illustrated by the Jacobi et al. (2002) paper, forms the basis of RCT’s and Therapy trials which are common in much of health care research, including Cognitive Behavioural Therapy (CBT) and treatment approaches/interventions to Bulimia Nervosa.   At its philosophical ‘core’ is the notion of empiricism (Owen, F. Jones R, 1977), whereby quantitative properties and phenomena and their relationships are observed and studied. Thus the process of measurement is crucial to the paradigm and this affords the connection between ‘empirical’ observations i.e did X effect Y and mathematics, through the expression of quantitative relationships As measurement is crucial to the quantitative paradigm, the choice of Randomised Comparison Study is entirely appropriate for the Jacobi investigation, as it wants to compare the treatment effects of three different conditions treating the disorder. Studies of this type are a form of scientific experiment, with RCT’s often referred to as the ‘gold standard’ for intervention studies (Cartwright, A. 2007). They are often used for ‘safety’ studies in drug trials and for testing the effectiveness   of clinical interventions and services The two research studies presented here, display different philosophical foundations, which shape their whole approach to research deign. The Contrasting   Research Hypothesizes Jeppson et al (2003), developed an aim for their qualitative study based on previous research they had encountered on the BN binge-purge process that is seen to be central to the disorder. The study was not concerned with assessing the ‘effects’ of interventions on binge and purge behaviour, but rather to try and understand what these behaviours meant and the functions they served for the patients they studied. They considered in previous research that quantitative methods, had focused on self-monitoring of these episodes and ranking them to ‘measure’ links to mental state e.g. Stress, and had deemed that it had not sufficiently led to an understanding of their function as experienced by BN patients themselves. They had an idea that these behaviours were crucial and played a part in assisting sufferers with their ‘emotional regulation’, but were curious and wished to expand an understanding of their role. They therefore set out with an ‘aim’ for the research to find out what BN patients experiences of these two processes and the meanings /function they served for them, I believe this ‘aim’ was entirely congruent with the qualitative method, and provided a question that RCTs looking at interventions had not and could not study. The Jacobi et al., paper(2002),   asked a different set of questions. They were interested in how CBT compared with the SSRI Fluoxetine, and a combination of them both .   They considered that both the psychological (Wilson, G.T., Fairburn, C.G., 1993) and pharmacological interventions (Goldstein et al.,1995) had developed an evidence base for treating BN. They designed an ambitious study to investigate the question of the relative short and long-term effectiveness of the three interventions. They questioned whether the combined approach would be more beneficial in the long-term, as previous research studies investigating a combination approach, had experienced high drop-out rates due to the side effects of the of the SSRI, which may have influenced their results. The study did not include a control or placebo condition, which would be the normal procedure for intervention type studies.The reason for this was that they considered   previous research had demonstrated the effectiveness of CBT and   Fluoxetine, and was not needed. The study had four aims: To compare the effectiveness of CBT, Fluoxetine and there combination, to compare the short and long-term effects of these treatments. To inquire about the possible ‘additive’ effect of combined intervention and to examine the differential effects of the treatments. These types of intervention question are suitable for a randomised study as the questions Jacobi and team are asking are essentially ones of intervention and differential effectiveness/measurement on a number of variables e.g. Binging and purging episodes, short and long term effects as ascertained by validated psychological questionnaires and clinical interview. Approaches to sampling It is generally considered that sample size is generally much smaller in qualitative studies than those recruited for quantitative studies such as RCT’s (Cresswell,J.W., 2003).   As qualitative studies are generally smaller in size, criticisms have been leveled at this paradigm. Although the paradigm does not seek to study the ‘total‘ population, issues surrounding diversity and variation within a population are often cited (Jones,2007). The Jeppson study used only eight participants The approach to sampling used in the study is important   as the process of selecting participants is relevant to the aims of the study.   They used purposeful sampling to generate the data for their enquiry. Purposeful sampling generally refers to the selection of participants who have experience or knowledge of the area under investigation (Procter et al, 2010) As all participants were selected with a specific diagnosis of BN (APA., DSM-IV,1994) they would all currently have experiences of the processes under investigation. They were recruited from a suburban area in Utah, USA., Descriptive information, including socio economic variation, inpatient and out patient status and educational information was given.  Ã‚   This form of sampling used in the study is not random or based on statistical probability as in quantitative studies. Sampling in quantitative research design, especially RCT’s, differs. This type of sampling is in essence the selection of of observable units, which can be measured (Maxim, P.S., 1999). As outlined in the introduction, BN is widespread in the UK (and other european countries). It is not possible in the Jacobi study to observe the effects of the treatment interventions with the whole population of people experiencing BN. Therefore quantitative studies tend to study a sample of the group or population which may represent the larger population. The study recruited its patents by a mixture of media advert and direct referral to the Department of Psychology at the University of Hamburg. All underwent telephone screening, by a clinician not involved in the study (to assess inclusion criteria) and a semi structured psychiatric interview,and physical examination As selecting people for therapy trials is   open to sampling errors, in that   some people selected,may be ‘exceptional’ or ‘different’ from those of the larger ‘Bulimic’ population.The method attempts minimize these possibilities, by careful inclusion/exclusion criteria and the random distribution of   the participants into one of the three treatment conditions[1] The size of sample for the Jacobi study is more important than the qualitative study, to gain meaningful results. Data Collection Methods and Data analysis The Jeppson et al study (2003) study, collected its data from interviewing eight participants who agreed to take part in the study, by using a semi-structured interview format, lasting one hour. The semi-structured format differs from a more limited ‘formalized’ set of questions, by nature of its flexibility. It allows for new questions to be added in response to what the interviewee says, inviting and generating further information, which the study utilised. The study used a ‘framework’ and ‘interview guide’, which is a collection or set of topics to guide the interview process (Lindlof Taylor, 2002). The paper, makes reference to this, but does not provide specific details of what constituted the ‘guide. To enhance validity, ‘member checks’ were conducted post interview, all participants received a 20 minute phone call, where findings were ‘shared’; allowing corrective feedback on accuracy. Transcripts were also read by three mental health professionals The study reported that ‘redundancy’ or theoretical saturation occurred between interview 5-7. Grounded theory employs this framework, so sampling frame   may be modified as a result of a process deemed, ‘constant comparison analysis’ i.e, that data is determined by its recurrence and re-evaluation to assist with the ‘theorizing   process’ of the area under investigation. The type of process involved in the   purposeful sampling used in Jeppsons study, accepts that it is impossible to identify ahead of time, all categories of emergent data that the researcher needs to review.   So its is purposely designed to pursue data collection categories to the point of concept or ‘data saturation’, which occurs when the data   is stable and the pattern(s) unlikely to change (Locke,2001). They found this occurred during the interviewers   5-7, and added 1 further interview according to protocol. (Lincoln Guba, 1985) Once   Jeppson collected the data, key points were assigned (or marked) to it, referred to as ‘codes’. Concepts and categories were then then worked out. The categories that emerged are seen within this methodology as the basis of theory generation for the study. This process as been referred to by Glaser and Strauss (1967) as the reverse emergence ‘hypothesis’.   Thus, it was considered that to gain information on the participants binge and purging behaviours it was best to ask them about their experiences so as generate theory from their responses, rather than to come to the study with a pre-determined hypothesis or theory which needed testing. As the researcher is part of the ‘research process’ and data collection, ‘reflexivity’, is a feature of the data collection process. This can be divided into ‘personal reflexivity’ and ‘epistemological reflexivity’. ‘Personal reflexivity’ involves the researcher being aware and examining their own values, experiences etc. and how this may have shaped the research. It also involves thinking about how the research may have affected and possibly changed people and researchers. ‘Epistemological reflexivity’ as such, asks   how the research question is defined and conducted and how it may of limited what was found? by asking   searching questions about the data and its findings (Willig,C. 2001). Jeppson notes, that he was ‘aware’ of himself and the potential influence on the study. Jacobi, collected its data by using a battery of   validated Psychological Measures to assess outcomes from the three intervention conditions.They were administered at pre and post treatment, and   at 3 months and one year follow up. Descriptive statistics[2] were given using the mean[3]   and standard deviation[4] of patients with regard to age, marital status, and   education. Frequency of binging and vomiting, onset of these behaviours , lowest BMI etc., no table provided. Data analysis was conducted by using a number of inferential statistical tests, to ‘measure’ and quantify a host of possible influences on the outcome results obtained form the measures of each condition. Individual one-way analyses of variance ( ANOVAs) were used to compare data, i.e., demographics, clinical variables:   frequency of binging etc pre and post.   The ANOVA technique involves measuring the variance of the group means and comparing that to the variance predicted if all groups were randomly sampled   from the same population i.e ANOVA, tests hypotheses about the mean(s) of a dependent variable(s) e.g frequency of binge eating across the different treatment groups, in relation to the independent variables i.e. group condition To analyze the differential effects of the 3 treatments is was originally proposed to use uni and multivariate analyses of covariance[5], e.g .to study the covariance of say mood state with frequency of purging across the treatment conditions, to see if the amount of change between two or more variable maps changes in another variable, an estimate of correlation.[6] Sample size, through attrition was assessed as to small to run theses tests, at one year follow up. The ANOVAs and MANOVA tests used in this study produce the F-statistic[7], which is used to calculate the P-value,[8] and significance. The choice of tests was appropriate[9], given 3 treatment conditions, and the comparative nature of the research question/hypotheses. A   intention to treat analysis, conducted for drop-outs was in line with the research protocol for this study design. Quality of studies The two papers have approached the subject of BN from different research designs. It is important when considering   research papers to assess their quality, in respect of their chosen methods. Jeppson’s paper, in a my opinion is a well designed study. The aim is suited to qualitative methodology. Assessing the quality of the study as proved challenging as its requires a different set of criteria, from quantitative research (table 1), And Patton (2002), outlines a series of considerations to establish rigor for qualitative research (table 2 ). The use of one interviewer, sample containing severe bulimics (Anorexia?), may have influenced the themes and results?   Also some ‘reporting issues‘   concerning method etc,, can   all factors effecting quality. Table1 . Critical evaluation of qualitative study Table 2. Criteria to establish rigor in qualitative studies Criteria to establish rigor in qualitative methods. Patton (2002) p.552-558 Study:Jeppson et al (2003) Binge and Purge Processes in Bulimia Nervosa: A Qualitative Study My interpretation (a)  Ã‚   Persistent observation(b)   Peer debriefing (c)  Ã‚   Progressive subjectivity (d)   Member checks (e)  Ã‚   Triangulation (f)  Ã‚  Ã‚   Transferability (g)   Dependability (h)  Ã‚   Authenticity and fairness (i)  Ã‚  Ã‚  Ã‚   confirmability Themes became redundant before last interview -observationStudy does not mention that this procedure occurred. Unclear in paper- could be implicit in methodology, not mentioned overtly Yes conducted Yes Makes case in conclusion for clinical enrichment and therapeutic alliance Process was of medium/high quality audit conducted Study was conducted and reported with ‘fairness’ to process Researcher is ‘aware’ of potential influence audit conducted The Jacobi research aims were entirely suited to the quantitative randomised trial it adopted   to look at the effect of the three treatment interventions and there effects in the short and long term . It, however, suffers from a number of serious flaws, undermining its validity and effects when assessed to by RCT quality criteria (Greenhalgh T.,2006). Firstly, the study fails to provide a power calculation. For to detect differences between   the   three intervention groups using randomisation, it is considered that the study should be ‘powered’ i.e contain enough patients to determine statistical accuracy. Normally 80% is considered the minimum standard of accuracy for clinical trails. (Ellis, Paul D, 2010), and leaves it open to type 2 errors.[10] This was not assisted by the attrition rate, especially at follow up. It contributed to the study being significantly ‘underpowered’, so much so that the results   at one year follow-up   being of   poor quality, the results could be dismissed[11] (Table 3 provides a critical evaluation) Table 3. Critical evaluation of quantitative study. Question Study: Jacobi et al. (2002) Cognitive-behavioural, Fluoxetine and Combined Treatment for Bulimia Nervosa: Short and long term results Does the study address the focussed question? Yes Were the patients randomly selected from a defined population? Patients were selected/recruited by advertisement and referral to the Psychology dept. Of Hamburg University. All had met the diagnostic criteria for BN. Was the assignment of patients to the intervention and control group randomised? There was no control group. Study compared effects of three different treatment conditions. Paper states they were randomised, but does not say how and by what method Were the participants and observers both blinded? Not stated though this difficult to achieve within psychotherapy trials Aside from the intervention were the groups treated equally? Yes Was a follow up completed Yes- at I year Did the study have adequate power to see an effect if there was one? No, there was no power calculation provided though this is common in psychotherapy intervention trials/studies. Very high attrition rate at follow up. Were all the patients who entered the trial properly accounted for? Full disclosure is given about the dropouts, calculations were made that suggest that the results at   follow up lack validity Were the results of the trial presented in a manner that allowed for full examination? No: adequate data was presented on tests MANOVA/ANOVA.   Ci’s not reported Secondly, the randomization procedure which gives the randomized controlled trial its strength. The investigators did not provide details of the randomization methods its used for the study[12], although this may be attributable to poor reporting, its is a significant emission (Jadad, 1998). The paper whilst providing a range of data, omits to report confidence intervals (CI)[13] for the three conditions and its results, and their were no   proposed effect sizes included the aims/hypotheses. Discussion Both studies addressed their research using different methods. Both were appropriate for the investigation, illustrating that methodology needs to be tailored to   the aim/hypotheses of the question under investigation. The Jeppson study was well designed, and managed to explore its research aim sufficiently, so some its findings had generalisability in treatment settings, and would benefit the CBT practitioner working with BN and aid ‘therapeutic alliance’ by taking into account its findings. By increasing understanding of how the processes have functions for the individual, well beyond the ‘behaviour’ itself. Jacobi’s study, although ambitious with a good design in principle, was seriously flawed. The under-powering of the study, the absence of good reporting on a number of methods and data, leave the study flawed. Its hypothesis and aims were suited to the methodology, but its sample size and attrition rate made   generalizability of the results difficult. It did provide some evidence (weak), that CBT is efficacious for the treatment of BN, which continues in clinical practice. Word Count:   3489 References   American Psychiatric Association (1994). Diagnostic and statistical manual of mental disorders. Washington DC., American Psychiatric Association. Cartwright, N. (2007). Are RCTs the Gold Standard? Biosocieties(2): 11-20. Cresswell, J. W. (2003). Research design: Qualitative, Quantitative and Mixed Methods Approaches. Thousand Oaks, CA., Sage. Daly, J., Lumley, J. (2002). Bias in Qualiative Research. Australian and New Zealand Journal of Public Health 26(4): 299-230. Ellis, P. D. (2010). The Essential Guide to Effect Sizes: An Introduction to Statistical Power, Meta-Analysis and the Interpretation of Research Results. Cambridge, C.U.P. Glaser, G. B., Strauss, A. L. (1967). The Discovery of Grounded Theory. Chicago, Aldine Publishing Company. Goldstein, D. J., Olmsted, M., Thompson, V.L., Potvin, j.H., Rampey, A.H. (1995). Long term Fluoxitine treatment of bulimia nervosa. British Journal of Psychiatry(166): 660-666. Greenhalgh, T. (2006). How to read a paper: the basics of evidence based medicine. London., BMJ Publishing Group. Jacobi, C., Dahme, B. Dittmann, R. (2002). Cognitive-Behavioural, Fluoxitine and Combined Treatment for Bulimia Nervosa: Short- and Long-Term Results. European Eating Disordrs Review(10): 179-198. Jadad, A. R. (1998). Randomised controlled trials: a users guide. London, BMJ Books. Jeppson, J. E., Scott Rchards, P., Mac Hardman, R.K. Mac Granle, H. (2003). Binge and Purge processes in Bulimia Nervosa: A Qualitative Investigation. Eating Disorders(11): 115-128. Jones, R. (2007). Strength of evidence in qualitative research. Journal of Clinical Epidemiology(60): 321-323. Lehman, A. K., Guba, E.G. (1985). Naturalistic inquirey. London., Sage. Lindlof, T. R., Taylor, B.C. (2002). Qualitative Communication Research Methods. Thousand Oaks, CA., Sage Publications Locke, K. (2001). Grounded Theory in Mangement Research. London, Sage Publications. Maxim, P. S. (1999). Quantitaitive research methods in the social sciences. oxford., Oxford University Press. NICE. (2004). Eating disorders: Core interventions in the treatment and management of anorexia nervosa, bulimia nervosa and related eating disorders. N. I. f. H. a. C. Excellence. Owen, F., Jones R, (1977). Statistics. London, Polytech Publishers. Patton, M. Q. (2002). Qualitative Research Evauation Methods. Thousand Oaks, CA., Sage Publications. Procter, S., Allan, T., Lacey, A. (2010). Sampling. The Research process in Nursing. Eds Gerrish, Lacey, A. Oxford, Wiley-Blackwell. Ragin, C. C. (1994). Contructing Social Research: TheUnity and Diversity of Method, Pine Forge Press. Russell, G. (1979). Bulimia nervosa: an ominous variant of anorexia nervosa. Psychological Medicine 9(3): 429-480. Stebbins, R. A. (2001). Exploratory Research in the Social Sciences. Thousand Oaks, CA:, Sage Publications. W.H.O. (1992). International Statistical Classification of Diseases, 10th Revision (ICD-10). Geneva, Switzerland: . Willig, C. (2008). Introducing Qualitative Research in Psychology. Maidenhead, Open University Press. Wilson, G. T., Fairburn, C.G. (1993). Cognitive treatments for eating disorders. Journal of Consulting and Clinical Psychology(61): 261-269.

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How media violence contributes to the violence at home Essay People have always believed that the various movies and violent dramas that are shown on TV are just but entertainment. In fact, some adults who feel that since they watched television when they were young and it had no negative effects on them tend to think that television violence cannot be a contributor to home violence. However this could not be the case in the present world. This is because the type of programs that were shown in the TVs in the early years did not contain many violent scenes as it is now. Many television programs are characterized with violent acts like abuse and rape, criminal acts and diminished trust. Indeed many researches that have been conducted clearly show that the increases in violence in the television are having a significant contribution to the violence experienced at home. Furthermore, the media portrays that problems both family and social are to be confronted with force or threats of force The effects of the violent scenes on television vary in the adults and children. Children are the ones who are highly affected since they are not able to discern what reality is and what fiction is. This makes them believe almost everything they see as being what the real world is. The present lifestyle has lead to most children spending many hours glued to the television something which itself can affect their behavior. In fact many researchers have shown that both the adults and children who spend most of their time watching television may develop the following perception. First is that there is an increase in crime even if it is not the case (Media Issues). Secondly that they can overestimate the risk of being victimized by crime and lastly they develop fear of crime which in itself sees crime as something that is all around. Some get mislead that violence rarely has negative consequences. In these programs a very high percentage of the violence acts go unpunished. In fact in some, those portrayed as heroes never get punished despite their violent acts. Furthermore, too much violence in the television leads to over aggression among children and in some adults. This has lead to an increase in violent behaviors in the world majorly due to imitation. People who see those being violent on TV try to copy them as models. This character is common among children. Studies have as well shown that children who watch violent shows and even identify with the violent characters are about twice as likely to be violent as young adults. The studies have as well indicated that men are more likely to embrace the violent acts as compared to their female counterparts. Other indicators of contribution of television violence to the home violence include increased desensitization and heartlessness (Christian answers). People tend to be more callous towards those who may have become victims of violence. In this they tend to ignore or just take easy incidences of violence claiming that they are common occurrences in television. This normalizes violence making it to look like part of daily life. Furthermore, in this way it dulls the emotion response to violence’s and its victims. In conclusion the influence of the media content on people has been openly quite evident. Anyone would agree with this. The advertisers use the media to sway consumer’s perception towards given products. This is equally the same to violence in the media which can as well sway peoples’ perceptions towards violence. Due to the above points it is clearly necessary for parents to take action against the viewing of television programs. Parents ought to talk to the children about what programs are good for them and which are harmful. Children should get encouraged to spend most of their time in sports and hobbies or friends other than watching television. Furthermore special banns ought to be put on some programs that have too much violence References Christian answers, Violence in the media – How it affects families? Accessed on August 16, 2010 from http://www. christiananswers. net/q-eden/edn-f012. html Media Issues, Research on the effects of media violence, Accessed on August 16, 2010 from http://www. media-awareness. ca/english/issues/violence/effects_media_violence. cfm

Decision of Ex Parte Datafin plc Analysis

Decision of Ex Parte Datafin plc Analysis A critical analysis of the manner in which the decision in R v Panel on Takeovers and Mergers; Ex parte Datafin plc [1987] 1 QB 815 is being dealt with under Australian law. Introduction The case of Datafin is an accepted element of public law in England; however Australian law is unclear to its applicability as courts reference the principle cautiously in the absence of a case pertaining substantive facts. The Datafin principle provides that a decision-making body may be subject to judicial review whether it is exercises its power from statute or private contract. That is to say, both the source and the nature of the power being exercised are to be considered when determining if a body is amenable to judicial review. In Australia, the Administrative Decisions (Judicial Review) Act 1977 (‘ADJR Act’) provides a statutory right to judicial review however a common law right (which may exist under the Datafin principle) is yet to be decided. Without a final decision from the High Court as to its applicability, the Datafin principle will continue to be dealt with tentatively on a case by case basis. However recent cases from lower and appellate courts indicate that the principle will most likely apply here as it does in England when a case with the relevant facts arises. Current Position in Australian Law There is no clear authority for the adoption of Datafin in Australia despite many decisions with reference to the principle. The closest the courts have come to taking an authoritative position regarding Datafin is the High Courts ruling in NEAT Domestic Training Pty Ltd v AWB Ltd.[1] This case marked a ‘paradigm shift’ in the delivery of administrative governmental services from being almost purely derived from statute to a mixture of private and public bodies.[2] In this case the High Court took an interpretation of Datafin to focus solely on the source of the power with no consideration to the power’s possible administrative/public nature. However, the conclusion in NEAT was very much limited to unique facts of the case and did not intend to be taken as a response to the broader issue of whether Datafin applies in Australia (i.e. whether public law remedies such as judicial review can be granted against private bodies). In this case, the improper exercise of discretionary power was argued by a wheat trader against the Australian Wheat Board (AWB). However since the AWB was a private body brought into effect by the Corporations Law (Vic), it was found that its power was not derived from the statute which NEAT was arguing under (the Wheat Marketing Act 1989). The AWB’s decision-making power was therefore not subject to the ADJR Act which sets out a requirement that decisions must be made â€Å"under an enactment† in order to be amenable to judicial review. Justice Kirby argued an in-depth and seemingly valid dissent in favour of adopting the Datafin principle to apply to the four:one majority decision. He raised the concern that if the wheat board was not amenable to judicial review it would essentially hold almost complete and unreviewable power over Australia’s wheat export industry. Therefore, the interests of the nation (or an issue of public significance) are irrefutably affected by a private body; a point acknowledged but not expressly addressed by Gleeson CJ. A conclusion can be drawn from NEAT that only the source and not the nature of the power is relevant when determining applicability of judicial review in Australia. This conclusion is alarming when considering the Commonwealth could effectively insulate itself from all legal and political accountability if each public decision-making body was privatised in a similar fashion to AWB Ltd.[3] An example of this conclusion can be seen in Griffith University v Tang,[4] where a student excluded from enrolment in university failed in her request for judicial review due to the university not making their decision under an enactment. Despite the university being deemed a ‘public’ decision-maker,[5] the judgements consider the nature of the university’s relationship to Tang to be voluntary (i.e. ‘private’). Therefore the source of power element could not be satisfied removing the need for the court to consider the substantive nature of the power.[6] In reaching this decision, their Honours accepted the reverse possibility that a private decision-maker could be considered ‘public’ and therefore amenable to judicial review.[7] The main implication of the decision in NEAT is that courts have essentially been advised not to make a decision about the applicability of Datafin until it is absolutely necessary.[8] Evidence of this deferral to make a decision about the principle has the courts intentionally not mentioning it in judgements even when parties make extensive submissions on Datafin to base their arguments. For example, the unanimous decision in the Offshore Processing Case[9] did not mention Datafin even once despite multiple submissions by both parties. Gradual Acceptance of the Datafin Principle by Australian Courts In Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd,[10] a corporation which dealt with financial industry complaints was deemed susceptible to judicial review. Justice Shaw described the corporation as a ‘public’ body, pointing to government involvement in its foundation and processes. Here it was held that the preponderance of authority in Australia indicates that Datafin is applicable, at least to companies administering external complaints in the finance industry.[11] In contrast, the case of Chase Oyster Bar v Hamo Industries[12]allowed Basten JA to explore the applicability of Datafin where he concluded that the decision Masu and did not amount to authority of acceptance of the principle.[13] Prior to this 2010 decision, Datafin had been referred to in Australian law with ‘apparent approval’.[14] Regardless, the Masu decision provided a foundation for Kyrou J’s later decision in CECA Institute Pty Ltd v Australian Council for Private Education and Training.[15] In this case it was held that the Datafin principle may render a private body to be subject to judicial review if that body is performing a ‘public duty’ or exercising a power with a ‘public element’. Defining a ‘public element’ of a decision, once described as â€Å"question-begging†[16] can be reasonably objectively determined from extensive English case law.[17] In the circumstances of this case, a link to a ‘public element’ could not be established and the matter was instead settled by private law.[18] A similar but more recent judgement in Mickovski v FOS[19] also suggested that the Datafin principle applies to Australian law provided the necessary public element can be satisfied.[20] In this case, an argument was raised that a public element existed by way of requiring a mechanism for private dispute resolution. However Pagone J held that the Datafin test failed as the corporation did not exercise government functions and its power over its members was derived from contract (therefore only allowing private law remedies). In doing so, the judgement cited and affirmed Kyrou J’s reasoning from Masu.[21] Shortly after this decision, the Australian Law Journal published an article by Kyrou J examining Datafin’s applicability to Australian law.[22] Justice Kyrou cited the Mickovski decision as an authority for the rule’s acceptance. However since the paper was published, Mickovski was appealed.[23] In the appeal, although dismissed, Pagone J was overruled in that the Datafin principle did not apply to the facts considering there was no public law justification for the request of judicial review. The Court explained in its dismissal of the appeal that with increasing privatisation of various government functions comes the need for the availability of judicial review in relation to administrative and public functions.[24] At [31], it was said that the Datafin principle provides a ‘logical’, approach to satisfy that requirement.[25] Buchanan, Nettle JJA and Beach AJA went on to conclude that it is doubtful that even a wide interpretation of Datafin would be appl icable to contract-based decisions.[26] Therefore, Kyrou’s argument and call for approval is not discredited and it appears likely that the Datafin test will be appropriate when the relevant facts and circumstances arise in future. It is significant to the current position that Datafin has never been rejected in Australian courts. However cases exist which are unfavourable to its ‘apparent approval’ prior to Chase. In particular, in Khuu Lee Pty Ltd v Corporation of the City of Adelaide,[27] it was specifically stated by Vanstone J in the Supreme Court of South Australia that Datafin â€Å"has not yet been adopted in Australia†.[28] At [30], her honour said â€Å"within intermediate appellate courts there are, at best, conflicting views as to whether [Datafin] represents the common law of Australia†. Should Datafin Apply in Australian Law? Writing extra-judicially, now-retired QC, Raymond Finkelstein stated that the courts’ function in relation to administrative law and judicial review should be to â€Å"ensure that all bodies – private or otherwise – that perform public functions do so in accordance with the law.†[29] Senior University of NSW Professor, Mark Aronson hints at the applicability of Datafin in Australian law and argues that â€Å"public power is increasingly exercised from places within the private sector, by non-government bodies, and according to rules found in management manuals rather than statute books. If judicial review is about the restraint of public power, it will need to confront these shifts in who exercises public power, and in the rules by which they exercise it.†[30] A similar sentiment was held by Kyrou J in his decision in Masu that Datafin â€Å"represents a natural development in the evolution of the principles of judicial review†¦ [It] is essential in enabling superior courts to continue to perform their vital role of protecting citizens from abuses in the exercise of powers which are governmental in nature†.[31] Since the Datafin principle has been adopted in Canada and New Zealand, there is also an argument supported by Kyrou J that on a constitutional level, Australia ‘should be consistent with the law of other important common law jurisdictions’.[32] The arguments put forward are not without criticism however. The evolution of private bodies administering administrative/public functions is considered by some to be a new area of law which requires fresh regulation rather than ‘shoehorning’ the issues to fit into Datafin.[33] This arguably explains why the principle is so reservedly discussed in judgements where the elements of Datafin frequently cannot be made out. The granting of judicial review against a private body’s excision of power which was neither statutory nor executive has occurred only once in Australia (in the case of Masu). Most cases which reference Datafin do so in obiter dicta simply to raise overlaps with other areas of law which have more established remedies and boundaries than attempting to expand administrative law principles. That is not to say more than one area of law cannot co-exist with certainty. Conclusion Despite significant and extensive ‘apparent approval’ of the Datafin principle, it is impossible to determine the validity of the rule in the absence of a High Court decision. However, the number of cases citing Datafin with favourable obiter appears to outweigh the number of cases which reference it with reservation. Whilst the obiter of NEAT recognises Datafin’s applicability in Australian law going forward, the actual decision of the case lends authority against its adoption. Regardless, in the unlikely event that the Datafin principle is rejected, private decision-making bodies performing public and administrative functions will not be immune to judicial review. The increasing trend of government divestment of administrative functions to private bodies will simply be dealt with judicial independence, allowing natural justice to form a either more refined interpretation of the Datafin principle. Bibliography Cases CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555. Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Griffith University v Tang (2005) 221 CLR 99 Griffith University v Tang (2005) 213 ALR 724 Khuu Lee Pty Ltd v Adelaide City Corporation (2011) 110 SASR 235. Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) (2004) 50 ACSR 554 Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257 Mickovski v Financial Ombudsman Services Limited Anor [2012] VSCA 185 Mickovski v Financial Ombudsman Service Ltd (2012) 91 ASCR 106 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 R (Beer) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233 R v Panel on Takeovers and Mergers; Ex parte Datafin plc [1987] 1 QB 815 Textbooks Matthew Groves (ed), Modern Administrative Law In Australia: Concepts And Context (Cambridge University Press, Australia, 2014) Journals Neil Arora, ‘Not so neat: non-statutory corporations and the reach of the Administrative Decisions (Judicial Review) Act 1977’ (2004) 32(1) Federal Law Review 141 Emillos Kyrou, ‘Judicial review of decisions of non-governmental bodies exercising governmental powers : is Datafin part of Australian law?’ (2012) 86(1) Australian Law Journal 20 Katherine Cook, ‘Recent Developments in Administrative Law’ (2012) 71 AIAL (Australia Institute of Administrative Law) Forum 1 Graeme Hill, ‘Griffith University v Tang – Comparison with Neat Domestic, and the Relevance of Constitutional Factors’ (2005) 47 AIAL (Australia Institute of Administrative Law) Forum 6 Matthew Groves, ‘Should we follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 737 Mark Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1 Raymond Finkelstein, â€Å"Crossing the Intersection: How Courts are Navigating the ‘Public’ and ‘Private’ in Judicial Review† (2006) 48 AIAL (Australia Institute of Administrative Law) Forum 1 Other CCH, Australian Company Law Commentary, ‘Internal and external dispute resolution procedures – ASIC’s policy: s 912A(1)(g), (2)’ (at 26 August 2013) [273-300]. 1 Sean Roche, N8844330 [1] NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277. [2] Neil Arora, ‘Not so neat: non-statutory corporations and the reach of the Administrative Decisions (Judicial Review) Act 1977’ (2004) 32(1) Federal Law Review 141, 161. [3] Neil Arora, ‘Not so neat: non-statutory corporations and the reach of the Administrative Decisions (Judicial Review) Act 1977’ (2004) 32(1) Federal Law Review 141, 160. [4] (2005) 221 CLR 99. [5] Griffith University v Tang (2005) 213 ALR 724 at 750-751 [108]-[110]. [6] Griffith University v Tang (2005) 213 ALR 724 at 766 [159]-[160]. [7] Graeme Hill, ‘Griffith University v Tang – Comparison with Neat Domestic, and the Relevance of Constitutional Factors’ (2005) 47 AIAL (Australia Institute of Administrative Law) Forum 6, 8. [8] (2012) 91 ASCR 106, [32]. [9] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. [10] Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) (2004) 50 ACSR 554. [11] CCH, Australian Company Law Commentary, ‘Internal and external dispute resolution procedures – ASIC’s policy: s 912A(1)(g), (2)’ (at 26 August 2013) [273-300]. [12] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393. [13] Chris Finn, ‘The public/private distinction and the reach of administrative law’ in Matthew Groves (ed), Modern Administrative Law In Australia: Concepts And Context (Cambridge University Press, Australia, 2014) 3, 56. [14] Emillos Kyrou, ‘Judicial review of decisions of non-governmental bodies exercising governmental powers: is Datafin part of Australian law?’ (2012) 86(1) Australian Law Journal 20, 22. [15] CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555. [16] R (Beer) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, [16]. [17] Emillos Kyrou, ‘Judicial review of decisions of non-governmental bodies exercising governmental powers: is Datafin part of Australian law?’ (2012) 86(1) Australian Law Journal 20, 31. [18] Ibid, 570, 576. [19] Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257. [20] Ibid, [12]. [21] Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257, [9]. [22] Emillos Kyrou, ‘Judicial review of decisions of non-governmental bodies exercising governmental powers: is Datafin part of Australian law?’ (2012) 86(1) Australian Law Journal 20-33. [23] Mickovski v Financial Ombudsman Service Limited Anor [2012] VSCA 185. [24] Katherine Cook, ‘Recent Developments in Administrative Law’ (2012) 71 AIAL Forum 1. [25] [2012] VSCA 185, [31]. [26] Katherine Cook, ‘Recent Developments in Administrative Law’ (2012) 71 AIAL Forum 1. [27] (2011) 110 SASR 235. [28] Ibid, [26]. [29] Raymond Finkelstein, â€Å"Crossing the Intersection: How Courts are Navigating the ‘Public’ and ‘Private’ in Judicial Review† (2006) 48 AIAL Forum 1-7. [30] Mark Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1. 4. [31] Ibid, 99. [32] Emillos Kyrou, ‘Judicial review of decisions of non-governmental bodies exercising governmental powers: is Datafin part of Australian law?’ (2012) 86(1) Australian Law Journal 20, 30. [33] Matthew Groves, ‘Should we follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 737, 749.

Strength of the Human Spirit Revealed by Ivan Denisovich Essay

Strength of the Human Spirit Revealed in One Day in the Life of Ivan Denisovich    Life can be incredibly hard at times; nearly everyone encounters a period of time when circumstances become unbearably difficult. Imagine being assigned to ten years of unceasing and tremendous hardships, as is the plight of the protagonist in One Day in the Life of Ivan Denisovich by Alexander Solzhenitsyn. This book describes in detail only one day of Ivan's ten-year sentence in a Russian work camp in the 1950's. During this day, which is like most others, he is starved, nearly frozen, overworked, and punished unjustly; however, as the day unfolds, it is obvious that Ivan will never give up and never give in. The character of Ivan Denisovich is a symbol of the human spirit and its never-ending will to survive, even through the harshest of conditions.    Ivan's day begins with reveille at 5:00, "as always" (significant because this day is just like every other day has been for the past eight years). On most mornings after reveille, he jumps out of bed to have a little time to himself, but today he is not feeling well and rises slowly. Usually, there are many things he could do during this time before the morning roll call: sweep up, carry something for someone, fetch the boots of the gang boss, gather and stack bowls at the mess hall, any number of little jobs.    On the surface, Ivan's actions look noble and kindhearted, as if the well being of others is his main concern. But like most kind gestures, there is an entirely different motive; for Ivan, it is just "another way of getting food"(2). He, like most people in a difficult situation, performs favors and tasks, not out of the goodness of his heart, but only out of his desir... ... Max Hayward, in his introduction to _One Day In the Life of Ivan Denisovich _, says the book "is a morality play in which the carpenter Ivan Denisovich Shukhov is Everyman" (xv). There are exceptions to the representation; Ivan is not a flat character, void of depth and definition, but through these examples, it is obvious that much of the time, Ivan Denisovich reflects the average human spirit and the way in which it reacts to difficult situations. Of course, the average human spirit does not endure the hardships presented in a Soviet work camp, but all hardships are related in their ability to destroy their victims or to strengthen them. In this case, Ivan is the spirit who is strengthened, the victim who will never give up, and never give in.    Bibliography Solzhenitsyn, Alexander. One Day in the Life of Ivan Denisovich. New York: Bantam Books, 1963.