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Stuff About Duty Of Care And Exceptions Notes

Updated Stuff About Duty Of Care And Exceptions Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest...

The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1. Duty of Care

  • Every doctors owes a duty of care to patients in their hospital

  • However, what about third parties? E.g. relatives/public – these are dealt with under Caparo principles of negligence

    • Was it reasonably foreseeable that D’s actions would cause the victim harm?

      • So if D prescribed medicine to X, who’s granddaughter then found the pills in X’s house and ate them

        • D would owe no duty to X’s granddaughter – her actions would not be reasonably foreseeable.

    • Proximity

      • WBA FC v El-Safty

        • Herring: result might have been different had WBA employed the surgeon directly and warned of the consequences of any negligence.

      • At the scene of an accident?

        • No duty unless contract of employment requires them to offer assistance

          • So GP who came across one of their patients in a car crash might be in breach of contract if they failed to assist or summon help.

        • If D begins to treat, assumption of responsibility towards them – so liable in tort

    • Public policy

      • A duty only exists if it is just and reasonable to establish one.

      • Palmer v Tees HA (dangerous sex offender patient released by psychiatrist, kills girl in his street – is there a duty to her?)

        • Stuart Smith LJ

          • While a defective machine will behave in a predictable way

            • via the laws of physics and mechanics and therefore liability is owed to wider class of people

              • a human being will not, save in readily predictable circumstances

          • For humans, it is at least necessary of the victim to be identifiable, although it may not be sufficient, to establish proximity

      • Smith v Jones [CAN]: X was referred to P to assess him, X having been told that his conversation would be privileged. X told P of his plans to rape, maim and kill prostitutes. P advised defence counsel of this, but while X pleaded guilty, defence counsel failed to introduce this evidence. P sought to breach privilege to get these facts disclosed.

        • Held

          • Three factors should be looked at in deciding whether public safety outweighs solicitor/client or doctor/patient privilege:

            • (1) Is there a clear risk to an identifiable person or group of persons?

              • Named persons/groups must be given greater weight, even if large,

                • than a general threat to the population

            • (2) Is there a risk of serious bodily harm or death?

            • (3) Is the danger imminent?

              • The nature of the threat must be such that it creates a sense of urgency.

                • This may be applicable to sometime in the future

          • Where, after consideration, the weight outweighs the right to privilege,

            • only the minimum disclosure necessary to protect public safety should be disclosed

Breach of duty in the medical context

  • The test is modified from normal law:

    • Bolam v Friern HMC [1957]

      • McNair J

        • It is not essential for you to decide which of two practices is the better practice,

          • as long as you accept that what the D did was in accordance with a practice accepted by responsible persons;

          • And if you are satisfied that his practice is better than the practice suggested, then it is really a stronger case

    • Me: The effect of the Bolam test is that it is not enough to show that one expert would have done things differently from D – the body of opinion need not be substantial

      • C has to show that no professional body of opinion (subject to Bolithio) would have considered what D did to be in compliance with reasonable practice.

  • Doctors do not have to be fully up to date

    • Bolam v Frien

      • McNair J

        • You have to consider whether it was negligent for certain action to be taken in 1954,

          • you must not look with 1957 spectacles at what happened in 1954.

    • Roe v Minister of Health [1954]:

      • A practice which is now considered bad but at the time was considered reasonable

        • Will mean that D in following the bad practice is not considered negligent

    • Crawford v Board of Governors [1953]:

      • And D does not have to be fully up to date with recent (published 6 months ago) research on practices

        • Although the advent of the internet probably means they need to be more up to date than in 1953

  • The Bolithio exception

    • Bolithio v Hackney HA [1998]:

      • Lord Brown Wilkinson:

        • In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion.

          • But if, in a rare case, it can be demonstrated that the evidence supporting the professional opinion is not capable of withstanding logical analysis,

            • the judge is entitled to hold that the body of opinion is not reasonable or responsible

    • Wisniewski v Central Manchester HA: C argued that there should have been further investigations of abnormalities in the fetal heart beat. It was established that an earlier C-Sec would have avoided the injuries C suffered. The judge at first instance rejected the body of opinion which said this was fine.

      • Brooke LJ

        • The judge had heard eminent experts stating that there was a responsible body of opinion which would not have done further investigations

          • Only rarely could a judge declare that the views of experts could not be supported logically at all

          • It is quite impossible for a court to hold that the views held by doctors of such eminence cannot be logically supported at all.

    • Burne v A: M telephoned D concerned about her child who had recently had a shunt inserted to drain fluid on the brain. D did not ask further questions, but simply listened to M’s concerns. The child had a...

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