Healthcare Law & Ethics

Question 1

how to test for standard of care and negligence?

Answer 1

bolam test

supplemented by bolitho case

Question 2

tort definition

Answer 2

WRONGFUL ACTS

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.

• negligence, trespassing, defamation, assault, battery…

Question 3

bolam test

Answer 3

accepted current practice

The Bolam Test is based on the premise of determining whether the actions of the medic are in line with the actions of other medics who are in their position

Question 4

bolitho case

Answer 4

evidence based medicine + logical

Question 5

doctrine of occupiers liability

explain how much care is owed and when care should be owed?

define the idea of “occupier”

Answer 5

DUTY OF CARE OWED; depends solely on whether he is deemed to have sufficient control over the premise, or part of the premises where the injury took place

occupier
- degree of control over premise = influence over state, condition, entry of premise.

spandeck test:
duty of care owed by occupier if =
- factual foreseeability (foreseen that person will be injured)
- legal proximity between parties
- public policy considerations

duty of care owed to lawful entrants BUT NOT EXPECTED TO BE insurers.

AMT PROVIDED SHOULD BE OF REASONABLE CARE

Question 6

doctrine of vicarious liability

Answer 6

employer is vicariously liable for the torts committed by its employees
- includes patient AND non patient care
- conditions: employee-employer AND within employment (job scope, responsibilities, roles)

ALSO LIABLE IF NON-EMPLOYEES who act as OSTENSIBLE AGENTS
- locums, outsourced.
- seen as/presented an employee/agent acting for a principal ie principal has control

Question 7

indepedent contractor liability

Answer 7

principal has no right of control over how an agent work is to be done.

NOT PRESENTED AS AN EMPLOYEE

Question 8

criminal law proceedings

Answer 8

guilty vs not guilty (burden of proof = 100% beyond reasonable doubt)

defined by legislation/statutes

guilty = fine, cane, jail, death

Question 9

civil law proceedings

Answer 9

liable vs not liable (burden of proof= 51%, balance of probabilities)

defined by contract law/law of torts

liable = damages, specific performance, injunction

Question 10

what is specific performance in civil law

Answer 10

Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract.

Question 11

what is injunction in civil law

Answer 11

Injunctions are legal instruments in the form of a court order that compels a party to do or refrain from specific acts.

in context - refrain?

Question 12

how can a wrongful act be charged in court

Answer 12

can have both criminal and civil liability

civil liability - only 1 route (tort (by law) or contract (by agreement))

can also result in ethical implications handled by relevant professional entities = SPC, SMC

Question 13

principles of medical ethics x7

Answer 13

autonomy: respect for patient needs/desires/preference

beneficence: contribute to pt welfare/wellbeing

non-maleficence: do no harm

justice: equitable distribution of benefits/burdens

fidelity: truthfulness, confidentiality

veracity: honesty

Question 14

legal considerations for autonomy

Answer 14

mental capacity to act: enables people to plan ahead and gives them the power to make choices for their future before they lose their mental capacity.

gillick awareness/competence: The doctor has to assess and come to a judgement that the minor who is aged 14 or above has sufficient understanding and intelligence to enable him to understand the proposed procedure and its consequences. If so, the minor’s consent can be accepted as valid.

lasting power of attorney: voluntarily appoint one or more persons (‘Donee(s)’) to make decisions and act on his/her behalf if he/she loses mental capacity one day.

court-appointed deputy: an individual appointed by the court to make decisions on behalf of a person who lacks mental capacity

mental health (care and treatment act)

Question 15

what are exceptions to patient confidentiality (fidelity)

Answer 15

Exceptions to Patient Confidentiality
* When a patient consents
* To other healthcare staff providing care for the patient
* Statutory duty by healthcare professionals (e.g. Infectious Diseases Act)
* Disclosure under court order
* Discovery of documents in court proceedings
* Public interest (e.g. injuries indicative of crimes, child/elderly abuse, rape)

Question 16

four components of medical negligence

Answer 16

• Failure to exercise an accepted standard of care in clinical professional skills or knowledge; hence leading to damage, injury, or loss
• Failure to exercise reasonable care and skills of a healthcare professional of hospital staff
  (Did not do properly)
• Omission to do something that a reasonable healthcare professional or hospital staff would do
  (Did not do what was supposed to be done)
• Doing something that a reasonable healthcare professional or hospital would not do
  (Did what was not supposed to be done)

Question 17

negligent misstatement

Answer 17

negligent misstatement is defined as an “inaccurate statement made honestly but carelessly usually in the form of advice given by a party with special skill/knowledge to a party that doesn’t possess this skill or knowledge

Question 18

breach of standard of care

Answer 18

A healthcare professional must be reasonably competent when compared to his/her fellow
peers
* A reasonable healthcare professional should deliver a reasonable standard of patient care
based on evidence-based clinical principles

bolam test and bolitho case

Question 19

how to establish medical negligence

Answer 19

duty of care > breach of standard of care > causation > foreseeable damages/injuries

Question 20

causation

Answer 20

establish that a lack of care on the HCP’s part resulted in the patient’s harm/injury

Question 21

patient’s defence in causation (res ipsa loquitor)

Answer 21

patients may not be trained clinically and cannot explain how medical negligence = injury/harm

law helps patients with this

if defendance HCP cannot provide satisfactory explanation - liable for damage/injuries

Question 22

HCP’s defence in causation (TWO TYPES)

Answer 22

volenti non fit injuria
- patient informed of risks, understood, and consented.

contributory negligence
- patient contributed injuries/harm through own negligence in addition to HCP negligence = damage reduced.

Question 23

patients rights

Answer 23

Patient’s Rights (include but not limiting to)
* To receive clear explanation of diagnostic tests, diagnoses, treatment options, medications,
prognosis, etc
* To understand treatment options (including monitoring requirements), and pros and cons
* To participate in and make care decisions
* To be monitored during treatment processes (i.e. treatment efficacy, adverse events)
* To accept or reject care interventions
* To receive timely and appropriate responses to their care needs
* To have privacy and confidentiality (unless exceptions apply)
* To have their special needs/requirements addressed (e.g. language, auditory/visual impaired)
* To be discharged (unless exceptions apply)
* To choose their healthcare professionals (i.e 2nd, 3rd, 4th opinions)
* To transfer and choose another healthcare institution (appropriate care settings and facilities)
* Exceptions apply (e.g. mentally-incapacitated, mental health legislation)
* The other healthcare institution can choose not to accept the transfer To access their
medical records (aka contents of medical records)
* E.g. laboratory/radiology results, medication dosage regimens
* Patient can consent to allow another family members to access his/her medical records or
obtain update of his/her medical conditions
* To know their healthcare professionals involved in their care provision
* To receive considerate and respectful care from competent healthcare professionals

Question 24

patient responsibilities

Answer 24

• Keep to scheduled TCU
• Reschedule missed TCU
• Understand instructions and education provided
• Clarify if in doubt
• Provide relevant information to healthcare professionals in a timely and accurate manner
• E.g. Signs/Symptoms, changes in medical conditions, issues in complying to medication
  therapy, additional medications from other healthcare professionals

Question 25

foreseeable damage/injuries

Answer 25

if can be foreseen by a reasonable man, then the injury/dmage is not remote

the damages MUST not be too remotez