Introduction To Medical Law

Question 1

Why do we have laws?

Answer 1

To protect life and property
To provide redress/compensation
To punish wrong doing 
Force people to behave well 
Ensure fairness
Provide clear boundaries
To maintain order

Question 2

What are the basics of criminal law?

Answer 2

For offences against individuals but brought on behalf of the crown (state/society) where there is prosecution of a ‘defendant’
2 elements: mens rea + actus rea (unless ‘strict liability’)
Innocent until proved guilty and standard of proof is beyond reasonable doubt so outcome is either guilty or not guilty
Remedy = punishment e.g. fine, imprisonment

Question 3

What are the basics of civil law?

Answer 3

Protects rights of individuals against eachother/the state where the ‘claimant’ sues the ‘defendent’ e.g. breach of contract, employment rights, personal injury, breach of copyright, liable, divorce, children arrangements, non-adversarial hearings (e.g. adults w/o capacity)
Standard of proof is balance of probabilities and the court can either find defendant liable or not in the outcome
Remedy: damages or injunction

Question 4

What is medical negligence?

Answer 4

Type of civil action where there are 3 elements of negligence action (tort) that apply generally too:
Duty of care
Breach of duty
Breach causes injury or loss (causation)
Can result in prosecution - criminal negligence is gross negligence showing such a disregard for life/safety it amounts to a crime deserving of a punishment Battery may result in criminal/civil action)

Question 5

What 4 bodies determine the law in England and Wales?

Answer 5

Judges
House of parliament
Court of justice
European court of human rights

Question 6

What are the key characteristics of statue?

Answer 6

Acts of parliament e.g. Human Fertilisation and Embrology act 1990, Children act 2004 + Mental Capacy Act 2005
Debated and passed by both houses + royal assent
Can repeal or amend common law

Question 7

What are the key characteristics of common law?

Answer 7

Made by judges; can be criminal, civil + non-adversarial
Applies statue and legal precedent to cases; decisions are binding on other cases
Higher court judgement takes precedence e.g. Supreme Court, Court Of Appeal, High Court and Lower Courts

Question 8

What are they key characteristics of European Union Law?

Answer 8

European court of justice highest EU law court
European commission proposes new EU law + can start proceedings against non-compliant Member States
Council of European Union equivalent of UK Supreme Court in law-making process
Where a conflict arises between UK + EU law - UK courts must give EU law priority

Question 9

How do judges make common law?

Answer 9

Abides by notion of serious harms being public crimes (introduced after Norman conquest in early middle ages) and judges use precedence (latterly statute + other legal instruments too) which is the use of principles binding for all other like cases. Some cases establish new principles which become precedent for future unless challenged in higher court. Principles determined by Supreme Court cannot be challenged.

Question 10

What occurs if someone is being prosecuted?

Answer 10

Magistrates Court -> Crown Court -> High Court (includes Queens Bench, Family Division + Chancery Division) -> Court of Appeal (includes Criminal division + Civil Division) -> Supreme Court

Question 11

What occurs if someone is being sued?

Answer 11

Tribunals -> County Court -> High Court (includes Queens Bench, Family Division + Chancery Division) -> Court of Appeal (includes Criminal division + Civil Division) -> Supreme Court

Question 12

What are the 6 medical principles was brought about by important landmark cases?

Answer 12

Principles by which capacity should be determined (Re C)
Refusal of minor not same as consent (parental consent can overrise refusal by ‘Gillick competent’ minor) (Re W, Re R + Re E)
Patient with capacity can refuse treatment even if causes death (Re B)
Patient can refuse any treatment however, irrational fear means it may be okay to ignore refusal where consent has been previously secured (Re MB)
Disclosure of confidential medical information in public interest (W v Egdell)

Question 13

How do statutes work?

Answer 13

New statute trumps existing common law + may change existing statutes - does not always overturn but may consolidate body of common law + clarify legal position e.g. Mental Capacity Act
May reflect political agenda of current Government/responses to strong public opinion e.g. Human Tissue Act
Changes to reflect European Union law e.g. Data Protection Act
Reflect changing moral views e.g. Abortion Act
New laws regulate new technological possibilities e.g. Human Fertilisation +
Embrology Act

Question 14

How does European Union Law work?

Answer 14

Based on rule of law - Treaties approved voluntarily/democratically by EU Membetr States
2 types: Primary (2 EU Treaties which give EU power to legislate in Member States) + Secondary legislation (EU Decisions, Directives + Regulations)
E.g.’s General Data Protection Regulation replacing Data Protection Act + EU Clinical Trials Directive (UK Clinical Trials Regulations based on)

Question 15

What can common law be overruled by?

Answer 15

Statutes which can be further overruled by European Union Law

Question 16

Why is there an increasing importance of law in how medicine is practised?

Answer 16

Shift from medical paternalism to patient autonomy; rights recognised
Corresponding uncertainty as to how best interests should be determined for those lacking capacity (more cases going to court of protection)
Statutes need to bring together threads of common law to give greater clarity to legal position in response to increasing no. of cases
Formal recognition for human rights and equality claims -> Humans Rights Act + Equality Act

Question 17

What umbrella are European Union Law, Statutes + Common Law under?

Answer 17

Human Rights Act + Equality Act

Question 18

What does the Human Rights Act involve?

Answer 18

Lists all fundamental freedoms + rights that individuals are entitled too; if rights breached you defend them through courts of England + Wales and eventually the European Court of Human Rights sometimes because it incorporates European Convention
Requires all public bodies to protect/respect an individual humans rights

Question 19

What are the 4 articles of importance in the Convention rights of the Human Rights Act important to Medicine?

Answer 19

2: right to life
3: freedom from torture and degrading or inhuman treatment
8: respect for private + family life
9: freedom of thought, belief + religion

Question 20

What does the Equality Act 2010 involve?

Answer 20

Harmonised previous legislation on discrimination protecting everyone in Britain from victimisation based on protected characteristics e.g. age, disability, sexual orientation etc. in the workplace + when accessing public services
Public bodies must also consider how policies affect people with these characteristics to ensure inbuilt discrimination is avoided

Question 21

In summary, law may:

Answer 21

Require - thou shalt
Prohibit - thou shalt not
Permit - thou canst (but need not do so)

Question 22

Why can we not illegalize everything that is immoral?

Answer 22

Morality is too broad + it changes

Question 23

What is the relationship between law and ethics?

Answer 23

Power can only rightfully be exerted over an individual against his/her will to prevent harm to others and if it offends all common decency + morality -> law

Question 24

What is the Good Samaritan?

Answer 24

Not in England + Wales, but France
Most people feel they ought to stop and help if life is in peril (risk to self consideration e.g. cant swim, car in flames) and some people may feel greater responsibility due to roles/special skills e.g. lifeguard, doctor
GMC suggests there must be professional obligation to provide aid even where there is some risk to self so Drs may have to account for why they did not offer aid (where public wouldn’t) even without legal obligation

Question 25

What is the GMC and what does it do?

Answer 25

Established by Medical Act 1983
Protects patients + improve medical education/practice across UK
Publishes guidance for Drs on standards expected of them - includes range of documents
Goes further than law alone as it includes legal requirements/restrictions of Drs AND ethical requirements that GMC has decided on
If someone makes a complaint to GMC -> instigate FTP hearings -> can result in warnings, interim orders, suspension or erasure from register

Question 26

Can someone be subjected to outcomes from the GMC and law at the same time?

Answer 26

Yes and outcomes may be different

Question 27

Summarise criminal law.

Answer 27

Public wrongs/crimes
Minimum standards
Impartial (blind to who you are)
-> imprisonment, community services + fines

Question 28

Summarise civil law.

Answer 28

Private harms/wrongs
Reasonable expectations; GMC guidance used to determine reasonableness of Drs
Impartial (blind to who you are)
-> redress £££

Question 29

Summarise statute.

Answer 29

Civil + criminal areas - can criminalise/de-criminalise
May reflect changing moral views
Can be political
-> Variety depends on whether criminal sanctions apply

Question 30

Summarise ethics.

Answer 30

Govern how individuals think they should behave
May be more exacting than law
Sometimes partial-special obligations e.g. to family
-> bad conscience, disapproval, ostracised

Question 31

Summarise GMC/professional ethics.

Answer 31

Expectations for professional behaviours likely to exceed both law + personal obligations
Protection of patients bring the profession into dispute
Favours patients but impartial between patients
-> Struck off/sanctioned/warned + restrictions on practice