Posted: May 2nd, 2021
Introduction In UK there are three main sources of English law, Legislation (Statue Law), Common Law (Judge-made Law) and the European Communities law. Pg 41, Longshaw, (2002) The purpose of this report is to explain the basis of Common made Law and also to explain duty of care, negligence, trespass, and consent. I will also look at how specific legislations instruct health care practitioners as to their legal responsibilities. Statute Law Legislation however, is probably the most important source of law in the UK. Legislation developed later than common law as a major source of law.
It is made by Parliament, i. e. the House of Commons, the House of Lords and the Monarch and they can make or unmake any law. Proposals for legislation (‘Bills’) are presented to debate by and voted upon by the House of Common and the House of Lords, finally receiving the assent of the Monarch and thus becoming Acts (Statutes) of Parliament. Common Law Common law forms a major part of England’s law. It covers common crimes that happen on a day to day basis and have always existed such as rape, assault, murder and theft.
It is created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects how the law is applied in future cases. Common law evolves with time and the sentencing for various crimes can be made harsher or softer. It uses the idea of precedence so that punishments that have been passed before in similar crimes can be used to determine the punishment for a similar crime. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. Jokinen, 2009) A precedence of common law is set down by Lord Atkins through the Donaghue vs. Stevenson case. There are two types of precedents: binding precedents (a past decision which is binding – the legal point of the earlier case is identical or sufficiently similar to the present one and the decision was rendered by a higher court) or persuasive precedents (which the court may consider but is not bound to follow) Sources of persuasive precedent may also be the Judicial Committee of the Privy Council, the European Court of Human Rights or courts of countries which also apply the common law.
Duty of Care In English law an individual is owed a duty of care by another, to ensure that they do not suffer unreasonable harm or loss. This definition of duty of care known today came from Lord Atkin and the ‘Neighbour Principle’ that came from the judgment on the Donaghue vs. Stevenson case in 1932. The Donaghue verses Stevenson is the case of Mrs Donaghue claiming damages from gastroenteritis after drinking a bottle of ginger beer and finding a decomposing snail in it. She was claiming damages against Mr. Stevenson the manufactures of the ginger beer.
When this case first came to court neither Scottish law nor British common law saw duty of care in regards to someone remotely connected. Lord Atkins changed things by saying everyone has a duty of care to their neighbour here is a quote of what the legal definition of a neighbour should be. “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question “Who is my neighbour? ” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee and would be likely to injure your neighbour.
Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ” (Lord Atkins, 1932) When this duty of care is not acted upon this s called negligence. Negligence Negligence is a tort law, which establishes legal liability for careless actions or inaction which causes injury.
Therefore negligence is not concerned with the action or inaction, but with the manner in which the action or inaction is carried out. Negligent conduct is that which falls below an acceptable standard, this standard has been established in order to protect others from an unreasonable risk of harm. Not every type of carelessness is defined as legal negligence. There are four elements that need to be proved for an action or inaction to be defined as legal negligence this are; duty, breach, causation and damage.
The “ABC” rule has to be met before negligence can be. A is that there has to be a duty of care between the health care practitioner and the patient. B is that the actions of the health care practitioner fell short of the duty of care identified in A. And C is that this action leads to damages occurring. Negligence is a part of Tort law. Trespass Trespass to the person in a medical setting could be a doctor or nurse carrying out a procedure without the consent of the patient; however this is not always the case.
In some cases doctors can perform emergency procedures to save a patient’s life without their consent this is sometimes because the patient is too ill to consent or there is a complication while another procedure is taking place. An example of trespass to the body in a medical setting is the case of Bartley v Studd. This case is about John Studd removing Mrs Bartley’s ovaries while doing a hysterectomy without her consent. (Garner, 1997). In the case of trespass, it does not have to be proved that any harm has occurred to the patient, which could have been the case in the above situation.
However, if the patient could prove that they would not have agreed to the procedure having known the risks beforehand and they can prove that they have suffered harm as a result, then they could succeed in a case of negligence against the nurse (Dimond 2003). Role and codes of practice Legislation, also known as Acts of Parliament or Statutes, is the commonest source of new law in the United Kingdom and is of great relevance to health, care ; social workers. There is another form of law known as Case Law -essentially ‘judge-made law’.
This is often referred to as Common law, developed by individual judicial decisions. Where a legal issue has been decided by a judge or judges in a superior court, lower courts are bound to follow this decision in subsequent cases. In other words when a senior judge has made a decision about case, other judges abide by this decision (called a precedent). Most law was made this way up until the 17th century but more recent legislation is nearly all created by Acts of Parliament, referred to as Primary Legislation.
The role of the judges is still important though, as they play a part in law-making by interpreting Acts of Parliament and their rulings may become law, as in the case of Regulations. Both the Acts and their relevant Regulations are law. Regulations and guidelines Regulations, guidance and procedures along with various codes of practice produced by the relevant professional bodies: the Nursing ; Midwifery Council (NMC) for Nurses and Midwifes, recommend what is considered to be good practice on a day-to-day basis for professionals.
This means in effect that the professional has a defence against claims of malpractice or negligence if s/he has followed the authorised guidance and regulations. However the converse also applies. If a professional has not followed accepted guidance or procedure and a client or patient has suffered harm as a result of the professional’s actions, the professional may be personally found guilty of negligence. Trespass and Consent Common law has protected the personal and bodily interests of the individual through the law of trespass.
When a patient undergoes treatment, it is the provision of consent that prevents the doctor from being held liable for a battery or for negligence. The essential elements to a valid consent can be summed up as follows: a) the patient must have sufficient understanding, otherwise known as the mental capacity to make the decision, b) the patient must consent (or refuse) the treatment of his own free will, with no duress or undue influence, and c) the patient must have been given sufficient information about the proposed treatment. 1 patient is capable of making such decisions, his consent or refusal will be valid.
In practice it can be seen that a patient who is very unsteady on their feet is at high risk of falling and it can be reasonably foreseeable that the patient could fall. In this situation, the nurse should take appropriate action to try and prevent the patient falling, and this falls within the duty of care that the nurse owes the patient. The nurse could communicate with other staff about the patient’s mobility and also put interventions in place to help prevent the patient falling. However, if the nurse was to ignore this reasonably foreseeable event and the patient did fall, the nurse would be in breach of her duty and could be negligent.
For an act of negligence to be established, it must first be determined that there is a duty of care owed. The Bolam test may be one way of establishing negligence in this case as other nurses in the same field may be asked what actions they would have taken in this situation. Conclusion. In this report we see that everyday practice professionals need to always refer to legislation directly – agencies that employ health and care workers, such as the NHS and Social Services Departments, will usually have produced documents that detail policy and procedure, designed to help them act in accordance with the law.
In conclusion this report also gives us a slight insight into the English Law within the legal system today. Bibliography Bradney, F. C. (200). English Legal System in Context (2nd ed. ). London: Reed Elsevier Ltd. Curzon, L. (2002). Dictionary of Law (6th ed. ). Essex: Pearson Education Ltd. Fleming, J. G. (1998). The Law of Torts (9th ed. ). Sydney: LBC Information Services. Garner, C. (1997, September 27). Doctor who removed patient’s ovaries without her consent found guilty of misconduct. Retrieved Feb 13, 2013, from The Independent: http://www. ndependent. co. uk/news/doctor-who-removed-patients-ovaries-without-her-consent-found-guilty-of-misconduct-1241322. html Gibbins, J. M. (2003). Complete A-Z Law Handbook (3rd ed. ). London: Hodder and Stoughton Educational. Holdsworth, M. (2006). Introduction to the English Legal System. citizED Citizenship and Teacher Education. Jokinen, A. (2009, April 13). Common Law. Retrieved November 7, 2010, from Luminarium: http://www. luminarium. org/encyclopedia/commonlaw. htm Lewis, J. P. (2008, November 11). Teenager who won right to die: ‘I have had oo much trauma’. Retrieved February 20, 2013, from Guardian: http://www. guardian. co. uk/society/2008/nov/11/child-protection-health-hannah-jones Lord Atkins, L. B. -P. (1932). Donoghue verses Stevenson. Retrieved from Scottish Council of Law Reporting: Retrieved February 20, 2013, from http://www. scottishlawreports. org. uk/resources/dvs/page-images/pages/Lord-Atkin-Page-2. html Mary Charman, J. M. (2004). Law AS & A2. Essex: Pearson Education Limited. Quinn, C. E. (2006). AS Law (3rd ed. ). Essex: Pearsin Education Ltd. Pg 41, Longshaw, A & Hughes, M W200: Understanding Law – Manual 1 (6th Edition), (2002), Oxford University Press, Oxford). BIBLIOGRAPHY 1. Slapper G. and Kelly D. The English Legal System (5th Edition), (2001) Cavendish Publishing Ltd, London. 2. Longshaw, A & Hughes, M W200: Understanding Law – Manual 1 (6th Edition), (2002), Oxford University Press, Oxford). 3. Penner J. E. Law Dictionary (12th Eidtion), (2001) Butterworths, London). 4. http://www. lawcampus. butterworths. com/log_in. htm 5. http://athens. butterworths. co. uk/athenslogin/FormsLogin. asp? /athenslogin/buttlogin. htm
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