Types of Legal Concepts - Assignment Example

Running Head: Legal Concepts Legal Concepts Name Institution Introduction Legal concepts are a set of rules which are enforced by institutions. They shape the society, economy and politics. In this paper the legal concepts that will be discussed are negligence and consent. Negligence Negligence occurs when there is conduct that falls short of behavior that the law comes up with for the protection of people against risk that is unreasonable and that causes harm (Buswell, 1997). A person is said to have acted negligently in the event that his or her actions have departed from that expected of a prudent person who acts under the same circumstances (Peyton, 2009). Negligence is constituted of four elements; duty of care which is present between the negligent person and the injured person that requires the person who is negligent to behave with reasonable care so as to avoid another person's injury, a duty of care breach which is as a result of the failure to perform with reasonable care, the injury's proximate cause is as a consequence of breach of duty, an injury which is as a result of breach of duty (Cupp & Polage, 2002). The injury that manifests may be financial, emotional, physical or mental as long as it is a form of injury which could be fixed through the payment of money damages. There exists different forms of negligence; active, comparative, continued, collateral, concurrent, gross, criminal, passive, reckless and hazardous (Fox & Shute, 1997). In the case of Clive A Chappel v. Beryl Jean Hart a patient sued the medical practitioner for failure to warn her of the dangers involved with a procedure. The cases interest is in the manner in which the court addressed the repercussions of the duty failure to warn and as such widened the level of potential damages mitigated against doctors (Peyton, 2009). The facts of the case were that Mrs Hart went through surgery for a pouch in her oesophagus to be removed. A rare complication resulted during the procedure and led to vocal cord damage and voice strength loss. The doctor was sued for negligence by Mrs. Hart. At trial she did not allege that procedure conduction was negligently carried out or advised. The case she put across was that she was not warned about the risk involved with the procedure which was voice impairment or loss. She argued that if she had been warned in advance then she would not have had the surgery. Instead she would have moved to put off the surgery, made more enquiries and had the surgery later performed by the most qualified surgeon (Peyton, 2009). Firstly, there was dispute about what Mrs. Hart was told by the doctor. The judge was inclined to Mrs Hart's version. The judge found out that Mrs Hart was not warned by the doctor about the voice loss risk. Mrs Hart's case was based upon annunciated principles seen in Rogers v Whitaker (1992) 175 UR 479. The aforementioned case stipulated that whilst it is not required of a medical practitioner to give a patient a heads up against all the therapy associated risks, the job to warn comes up in two circumstances. It occurs where a patient stipulates that she desires to be warned about the risks. In the event that there is no desire brought forth by the patient then the doctor is vested with the responsibility to warn the patient of the therapy risks. The facts of the case were that Mrs. Hart through her conduct brought out her desire to be told the risks associated with therapy. She had brought out her sentiments about not ending up in a condition similar to that of Neville Wran. The doctor assured her that there was not a real risk involved in the surgery. Although the court of Appeal was invited to overturn the findings it did not do so. The court came to a conclusion that there was enough evidence to rely on the findings as fact. The Court of Appeal put a lot of weight on the trial judge's advantage of assessing the witnesses as they brought forth their evidence. The case's key interest was on the causation question. It is important to keep in mind that the surgery was not done negligently. There existed a risk that a problem might emanate without negligence. The doctor's major fault was the failure to warn the patient of the risks involved. The doctor argued no damage in his defense since Mrs. Hart would be forced to go through an operation in any given event in which case the risk would have manifested. The court did not accept the argument. It took up Mrs. Hart's line of thought that she was not accorded the opportunity to make the decision whether the surgery was a risk to be run. Mrs. Hart argued that she was denied the opportunity of having the surgery conducted by a surgeon who had greater experience and as such would have resulted into a risk reduction. As a consequence, the court found negligence committed by the doctor as the plaintiff was exposed to more risk as a result of suffering complications. The court saw it as an industrial accident analogy case where by an accused breach of duty resulted in an increase of an existing risk to which the accuser was exposed to. The court came to the conclusion of the existence of negligence. The case's result widened the level of damages that is potentially available against medical practitioners. Historically, the duty placed upon doctors was a man with ordinary skills performing and professing the existence of a special skill. Now it happens that a party seeks the man that is most qualified in the field so the phenomenon increases the level and type of duty. The case's implication is that it expands the damage's scope. James Selywn Frost v The Board of Management of Royal Perth Hospital and Jane Margaret Whittaker was an appeal case from damages award against a hospital and a doctor as a consequence of a 1988 treatment (Cupp & Polage, 2002). The plaintiff got to the hospital's emergency department by ambulance with a myocardial infarction. The condition was not diagnosed in the hands of a junior doctor who was the hospital's employee serving as resident medical officer operating the emergency department. The registrar did not also diagnose the problem. The patient had reported severe chest pains. The ECG conducted was normal. This led to the doctor making a conclusion that maybe the pain was gastric. The plaintiff was sent home. There was no mitigation of symptoms which resulted in the patient seeking help from a general practitioner who came to the conclusion that the patient was suffering from myocardial infarction. The plaintiff went back to the hospital and was treated for myocardial infarction. The first appeal issue was whether or not the doctor was to be charged of negligence for failure to make the diagnosis in the first instance. Firstly, the judge did not make a negligence finding. He based his judgment on a number of authorities which was inclusive of Rogers v Whitaker which had a statement that inappropriate treatment and wrong diagnosis is not essentially negligence. The court went ahead to take into consideration the content and nature of a doctor's duty in the aforementioned circumstance. It lay emphasis that the case's standard was that shown by an ordinarily skilled person who exercises and professes to be vested with skill. The expected doctor's standard of care in the aforementioned instance was lengthily discussed with emphasis on breach which was assessed by reference with regard to other doctor's practice. The court of appeal was guided by Wilsher v Essex Health Authority (1987) 2 WLR 4-5 The expert evidence which was given on the doctor's behalf at trial ended in the conclusion that failure in making diagnosis was not deemed unreasonable in each and every circumstance. As a result of the finding the trial judge did not find the doctor guilty of negligence. However, the hospital was held liable. In that it promised an emergency service and owed a duty of care which was not practiced. The hospital's mistake was that its system was not sufficient. The court breached its duty of care which was non delegable. It was noted to be reasonable that the hospital should have had enough systems to make sure that the patient was kept for further testing and observation. By failing to have a system that was proper constituted to negligence. The court also noted that the junior doctor was not expected to conduct himself in a manner similar to that of a specialized cardiologist. Liability fell on the hospital which was to ensure that the doctor was closely monitored. Consent According to Webster's II College Dictionary consent defined as a noun is the voluntary allowance of an action planned or executed by another. The same dictionary defines voluntary as an action rising from a person's free will. There are prerequisites that have to be present in order for consent to depict autonomous choice (Uniacke, 1991). The existence of the prerequisites has led to the formulation of the term informed consent. For a person to be in a position to give informed consent there needs to be comprehension, information and volition (Pedroni & Pimple). Volition requires that the prevailing conditions are without undue influence and coercion. Coercion takes place in the event a person threatens to harm another person so as to obtain consent. Undue influence takes place via an offer of excessive, improper reward, unwarranted or other overture in order to get compliance. In addition inducements that would normally be acceptable become undue influences in the event the subject is vulnerable. Access to information is vital so as to allow a person to evaluate the available options. Comprehension is also an important requirement. The power to understand is dependent on rationality, maturity, intelligence and language. The internal constraints that influence comprehension are decision making biases and cognitive ability. While the external constraints that influence comprehension are marketplace manipulation and cultural biases (Uniacke, 1991). There is an obligation to get prior consent (in relation to living patients) so as to allow for treatment, diagnosis, teaching, organ transplant, medico-legal purposes, revealing of medical records (Tay, 2005). With respect to those who are dead for pathological post mortem, organ transplant and medical record disclosure. Consent can be given in the following number of ways; express consent, tacit consent, implied consent, surrogate consent and advance, presumed and proxy consent (Pedroni & Pimple, 2001). Express consent may be in writing or oral. Written consent is deemed as superior due to its evidential value. Surrogate consent is that given by a person's family member. Generally courts have decided that family member consent in conjunction with the approval of two doctors is enough to protect a patient's interest. Implied consent is that one which is implied by a patient's conduct. Tacit consent refers to implied consent which is understood even if it is not stated. Advance consent is that one given in advance by a patient. Proxy consent is that one given by a person who is authorized (Tay, 2005). In the event that a minor is involved then consent may be sought in court. This is because minors are not in a position to exercise informed consent. For instance in the case of Secretary, Department of Health and Community Services v JWB and SMB (Pedroni & Pimple, 2001). In the aforementioned case the 14 year old girl in question suffered from epilepsy, severe deafness, intellectual disabilities and other disorders. Marion was also seen as not able to take care of herself physically and she also did not comprehend the implications of sexuality, motherhood or pregnancy. Her parents sought to obtain the permission of the court to allow them to have Marion (the 14 year old girl) get an oophrectomy and hysterectomy which would serve to sterilize her. The operations would prevent her from having children in conjunction with adulthood hormonal effects. Marion was so disabled that she could not comprehend the implications or nature of the operations sought by her parent's on her behalf. It was also presumed that she would never understand what was going on. The court was expected to act in Marion's best interest. The main legal debate that came up was who had the mandate to authorize the surgery. The available options were; the court, Marion and her parents. Australia's commonwealth came to the conclusion that only a court could make such a decision. However, the parents argued that parents and guardians were in a position to make a decision to sterilize a child and a court's role was merely supervisory. They further argued that guardians and parents were in a position to give consent so long as the operation was in the best interest of a mentally incompetent child. By a majority of 2/1 dissented by Nicholson CJ the Family Court floated the argument that the parents as Marion's joint guardians were in a position to authorize her sterilization without their having a court order. Although Strauss J deemed the obtaining of the Family Court's approval as prudent. McCall J came to the conclusion that the Family Law's Act relevant provisions gave the parents long term responsibility for their child's welfare. It also granted them every common law powers, duties and rights that are associated with guardianship. He came to a conclusion that the aforementioned were wide enough to empower parents to be able to authorize sterilization. Nicholson CJ was in agreement with the judicial comments previously arrived at in English decisions with regard to sterilization. He came to the conclusion that sterilization interferes with a person's right to reproduce and as such the decision was in a category of its own and was different from the common procedures in which parents consented on behalf of their children. In the judge's view, the features of the case in conjunction with the irreversibility of the procedure required the authority of the court. The ethical basis for the development of legal concepts Ethics are the moral principles that guide a group's or a person's behavior (Beecher, 1966). The principles more often than not lead to the formation of rules which govern behavior. The principles form the basis of legal concepts. The fundamental reasons behind the development of rules are; social cohesion, individual protection and societal order. Social cohesion permits a group to function together for aims that are identifiable. A group's proper functioning is fundamental to the start and advancement of a profession. A group further develops its very own internal rules that govern behavior and result into the formation of professional ethics. It has been noted that the ethical considerations put down by a given profession is not necessarily binding. It therefore follows that decisions made by governing bodies for instance General Medical Council is subject to court reviews. For example decisions made by institutions such as General Medical Council have been overturned by the High Court’s (Beecher, 1966). Secondly, rules are put up to aid in societal order. The aforementioned aim to determine wrong or right behavior lead to the moral standing of a society. It therefore follows that individuals who have differing views may be coerced into behavior that is acceptable for the society's common good. Thirdly, individual protection serves to accord people development and personal growth opportunities. The existing rule of law serves to balance competing interests that exists between individuals or those that exist between individuals and the society (Beecher, 1966). Conclusion Legal concepts are necessary for the smooth running of the society as people are held accountable for their actions. Legal concepts are based on ethics which also serve to guide people. Negligence especially in the medical field has ensured that doctors are careful with the lives they handle for instance in Rogers v Whitaker (1992) 175 UR 479. Consent is vital for the start of events, performance of actions and partnerships as it ensures that things are run fairly for instance in Secretary, Department of Health and Community Services v JWB and SMB. References 1. Beecher H. (1966) Ethics and clinical research. New Eng J Med 274, 1354–60 2. Buswell, H.F. (1997). The Civil Liability for Personal Injuries Arising out of Negligence. 3. Cupp, R.L & Polage, D. (2002). The Rhetoric of Strict Products Liability versus Negligence: An Empirical Analysis. New York University Law Review 77. 4. Fox, P & Shute, R. (1997). Recent Cases in Medical Negligence. Retrieved August 27th from http://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=http://www.tved.net.au/PublicPapers/June_1997,_Lawyers_Education_Channel,_Recent_Cases_in_Medical_Negligence.html 5. Pedroni, J.A & Pimple, K.D. (2001). A Brief Introduction to Informed Consent in Research with Human Subjects. 6. Henderson, J. (2002). Why Negligence Dominates Tort. UCLA Law Review 50. 7. Peyton, R. (2009). Medical Negligence Expert. Retrieved August 28th from http://www.jwrodneypeyton.com/medical-negligence-expert.php 8. Tay, C. (2005). Recent Developments in Informed Consent: the Basis of Modern Medical Ethics. APLAR Journal of Rheumatology 8: 165-170 9. Uniacke, P. (1991), 'Children's consent to medical treatment: implications for the medical profession', Law Society Journal November, pp.56-58. 10. Websters II College Dictionary 245 (3d ed. 2005) Read More