Medical Law Flashcards
What are the key componenets of criminal law?
Offences against individual but on behalf of the crown (society/ state)
Prosecution of defendant
Mens rea - guilty mind, individual awareness of the crime
Actus rea - physical act of the crime
Innocent until proven guilty
Standard of proof is beyond resonable doubt
Guilty/Not guilty followed by punishment.
What are the key components of civil law?
Protects individual rights against others/ state
Claimant sue the defendant
Standard of proof = a balance of probabilities
Court finds the defendant liable or not
Damages or injuction
What types of cases occur in civil law?
breach of contract / copyright
Employment
Personal injury
Family matters –> divorce, custody of children
Arrangement for adults without capacity
What type of case is medical negligence?
Civil law
if disregard of life and safety of others is great enough it can result in prosecution (Criminal)
What are the three components of neglicence action?
1) Duty of care –> what is the duty of care?
2) breach of duty –> what was the breach of duty?
Breach causes injury or loss (Causation)
was this breach the legal cause of harm?
What three types of law exist in the UK
Statute law
Common law
European union
Statute law: who decides on these law?
Parliament–> debated and passed by both houses, requires royal assent (sovereign allows a bill that has been passed by parliament, becomes an act of parliament.)
Statute law: two examples?
Mental capacity act 2005
Human embryology and fertilisation act 1990
What is the relationship between statue and common law?
Statue law can repeal or amend common law
Common law: who makes the decisions?
Judges
Judegemnets take precedence from the supreme court –> appeal court –> high court etc.
How does common law work in practise?
Application of statute and legal precedent to cases
Decision is then binding on other cases
What is common law?
Laws distinct from statute that are derived from judicial decisions
follows the stare decisis principle where decisions are based on precedent.
Precedent = principle/ rule established in previous case that is binding or persuasive to case with similar facts.
who creates EU law?
European court of justice
highest law court in europe
Which organisation proposes new EU law / starts proceedings against non compliant states?
European commission
What is the role of the european commission?
Propose new laws
start proceedings against non compliant member states
What is the EU equivalent of the house of lords?
(The House of Lords is the second chamber of the UK Parliament. It is independent from, and complements the work of, the elected House of Commons. The Lords shares the task of making and shaping laws and checking and challenging the work of the government.)
Council of the european union
In conflict between UK and EU law which takes priority?
EU law
What is english law?
Common law system
Made by judges using precedence, and later statute and other legal instruments
define precedence
used of principles that are binding for all other like cases
What is the layout of UK courts?
In criminal law:
Begins with magistrates court –> goes to crown court –> high court –> Court of appeal (criminal division) – >supreme court
In civil law:
Begins with a tribunal -> ascends to county court –> ascends to high court (chancery division) –> court of appeal (civil division) –> supreme court
Important landmark cases in medicine:
What did the Re C case lead to?
Principles to determine capacity
What did the Gillick vs West norfolk case lead to?
Consent and confidentiality for minors with capacity
What did the Re W, Re R and Re E cases lead to? (criminal law)
refusal of consent by a minor not given the same standing as consent by a minor in similar circumstances –> parental consent can override the refusal of a gillick competent minor
What did the Re B case lead to?
Patient with capacity can refuse treatment even when it will lead to his/ her death
What did the W v Egdell case lead to?
Disclosure of confidential medical information in the public interest
What are the functions of statute law?
(statute = written law passed by legistlative body)
Overturn common law
consolidate body of common law
Modify/ change existing statutes
Clarify a legal position
What can statute law reflect?
agenda of the government
responses to public opinion or scandal
EU law
Changing moral views
changing technology
What is the EU based upon?
Rule of law
all actions based on treaties approved voluntarily and democratically by member states
What are two types of EU law?
Primary legislation -> EU treaties which allow the EU to legislate in member states
Secondary legislation –> EU decisions, directive and regulations
Give two examples of EU law in healthcare?
General data protection regulation (2018)
EU clinical trials directive 2002 -> uk clinical trial regulations based on this
Why has there been an increase in legal actions/ statues towards medicine?
increased patient autonomy and empowerment –> insist on the rights and recognition of these
Uncertainty regarding how to determine best interests for those lacking capacity
Statue needs to consolidate common law to clarify legal position
Formal recognitino of human rights and equality claims –> human rights and equality act
What does the human rights act 1998 list?
the fundamental freedoms and rights individuals are entitled to
Human rights act: What does this act incorporate
What does it require
•The Act incorporates the European Convention on Human Rights (ECHR) meaning that if rights are breached, you defend your rights through the courts of England and Wales and eventually the European Court of Human Rights (ECtHR) if necessary
Requires all public bodies (inlcuding hospitals) to protect and respect human rights
What are important articles in the human rights act?
Article 2 –> right to life
article 3 –> right to freedom from torture/ degrading or inhuman treatment
article 8 –> respect for family and private life
article 9 -> freedom of thought, belief or religion
What does the equlaity act 2010 ensure
protection from discrimination harrassment or victimisation based on protected characteristics
What are the protected characteristics in the equality act?
age
sex
gender
marital status
race
religion
pregnancy or maternity
sexual orientation etc
Why might a dr have to account for not offering aid in first aid scenario?
Due to profession obligation to do so and due to training
there is no legal obligation, no good samaritan laws inUK
What does GMC guidance encompass?
legal requirements and restrictions
ethical requirements
Outline main differences between criminal law, civil law, statute law, and GMC guidance
Criminal law –> public wrongs and crimes, minimum standards of behaviour, impartial (innocent until proven guilty), can result in imprisonment/ community service fines etc.
Civil law –> private harms or wrongs, based on reasonable expectations and GMC guidance used to determine reasonableness of Drs. Impartial, can result in redress (remedying/ set right) and fines.
Statute law –> civil and criminal areas can criminalise or decriminalise. May refelct changing moral views, can be political and outcome depends on whether criminal sanctions apply.
GMC professional ethics –> outlines expectations for professional behaviour, likely to exceed both law and personal obligations. Role is to protect patients and protect reputation of profession. It favours patients but is impartial between patients. Outcomes can lead to drs being struck off/ sanctioned/ warned or restrictions on practice.
