Notesale: Turn your study into money

Document Preview

Extracts from the notes are below, to see the PDF you'll receive please use the links above

---

RESOURCE ALLOCATION: Rationing (or priority setting) refers to the discretionary allocation of scarce resources within the health care system
...
Decisions are made on both a macro and micro level
...
The ‘Paradox of Health
Care’
...
RATIONING
STRATEGIES*Such strategies have developed, on a macro level, to deal with infinite demands and finite resources
...
Patients Need –
attractive and simple approach – not based on desires or wants
...
How do we assess needs? Rank of needs?2
...
3
...

Measure not just extra years of life but quality
...
Criticisms of QALY: explicitly utilitarian; decisions act against the elderly and handicapped; macro/micro cost effectiveness of health care
...
Age5
...
Public opinion – NHS funded by tax payers money – should public have a say in how that is spent?7
...
Eradication of inefficiencies9
...
RESOURCE ALLOCATION Legal Approach*Challenges to Rationing Decisions: 1
...
breach of statutory duty – statute must be
specific about the duty
...
3
...
human
rights act 1998 – art 2 right to life, art 3 protection from torture, art 8 right to private life
...
non-UK citizens treatment (Health Tourism) – D v UK
...
The Patient’s Role*Top-up payments*Seeking Treatment Overseas – art 49 EC Treaty, art 22 of Reg
1408/71
...
*Governs cross border medical treatment
...
RESOURCE ALLOCATION
...
negligence – duty, breach, loss2
...
Duty under s1 and s3
NHS Act 2006 – ex parte Hicks; ex parte Coughlan; Clunis v Camden and islington HA
...
judicial review – decision was illegally? It was unreasonable? Procedural
impropriety? R v Sec of State for Social Services ex parte Walker; cf R v North and east Devon HA ex parte Coghlan 4
...
5
...
Government Policy*Macro decision-making and policy*The role
of National Institute for Clinical Negligence (NICE)Clinical Discretion*Do Clinicians ration?*Likely to change on introduction Health and Social Care Bill with more GP
involvement
...
R (Watts) v Bedford PCT
...
*Kohil v Union Des Caisses de Maladie
...
Clinical negligence involves all those within the medical profession such as
doctors, nurses, dentists, pharmacists, etc
...
*Increased pressure on doctors
...
Types of
action*Criminal – R v Adomako – if a breach of duty of care has caused death and the breach was so gross as to justify a criminal conviction
...
D OF C: 1
...
2
...
Duties and emergencies – Barnett v Chelsea – d of c provided it is their patient
...
Duty to assist? No legal duty – Re F (Mental Patient:
Sterilisation)/NHS (Gen Med Services) Regulation 1992 – doctors do owe d of c if patient on their list
...
D of c on hospitals – wilsher v essex AHA(can owe a patient a nondelegable d of c to provide properly skilled medical staff and an adequately equipped hospital); Bull v devon AHA (bad management of resources so liable); Garcia v St
Mary’s NHS trust (ct should be weary of making judgments on resource allocation)
...
D of c and right to treatment – Rogers v Swindon NHS Trust/ R v Cambridge health
authority ex parte Child B– do not interfere with clinical judgments re treatment
...
Duty to write prescriptions clearly? Duty to write clearly and duty on pharmacist to
check if cannot decipher - Prendergast v Same & Dee
...
Also: Bolitho v
City & Hackney HA
...
This is rare though
...
Depends on how niche the medical area is
...
*Cts consider level of information/risk: Sideway v Board of Governors
...
10% adequate to inform? Apply Bolam test!*In Rogers v Whitaker they followed prudent patient test (other countries) - if p asks for all of the risks, d must tell
...
No allowance made for lack of experience
...
In Crawford v Charing Cross
Hospital – C argued that recent article was not read, but ct took pragmatic view as Dr cannot be studying all the time
...

Barnett - Doctor was not liable due to ‘but for’ test as patient would have died of poisoning even if patient had been examined
...
*Causation in law: can medical
treatment ever be novus actus interveniens? Robinson v post office
...
This is a question of law for the court to
decide and so in some cases, the d may have caused the damage in fact, but in law, such damage is too remote to be recoverable
...
*1
...
There is no need to foresee the exact method by
which damage occurs
...
Extent of damage – the d is liable for the full extent of the damage even if this is more excessive than that normally expected
...
It does not matter if the c had a condition that aggravates the damage – page v stepney
...
3
...
BURDEN OF
PROOF? *Res Ipsa Loquita (the fact speaks for itself)
...
CRITICISMS/CHALLENGES TO BOLAM
TEST: *Defendant friendly – statistics of success against doctors is low
...
*What is a reasonable body of opinion? Rogers v Whittaker *Doctors are reluctant to deviate from
standard practice, which can be negative – Hucks v ColeBUT*Relieves judges from choosing between experts*Discourages excessive litigation*Allows doctors to practice
innovative medicine
...
It is both legal and medical requirement
...
Lord steyn in Chester and Afshar stated: “A rule requiring a doctor to abstain from performing an operation without the
informed consent of a patient serves two purposes
...
It
also ensures that due respect is given to the autonomy and dignity of the patient
...
Personal autonomy or the right to self
determination prevails
...
*Requirements: The patient is competent? The patient is
sufficiently informed
...
FORMS OF CONSENT*No specific form required for legal consent
...
*Can be revoked at any time
...
Deviations is evident – Davis v Barking
HA*Principle of autonomy prevails – every competent adult p has the right to refuse treatment, even if refusal will result in death
...
1 (2) MCA 2005 – Patient is presumed of competent in absence of evidence to the contrary NB: capacity is issue specific*R (N) v Dr M, A
NHS Trust – burden of proof is on Doctor to prove the patient lacks capacity
...
2 (1) MCA 2005 – definition of a patient lacking capacity
...
*S
...
3 (2) MCA 2005 – how an explanation
should be given eg use of lay language
...
1 (4) MCA 2005 – a person is not to be treated as unable to make a decision merely because it is unwise
...
Patient will have capacity if he can comprehend and retain treatment information,
believes the information, and has arrived at a clear choice
...
* S
...
SUFFICIENTLY INFORMED*There is no Doctrine of Informed Consent – Re T (Adult: Refusal of Treatment)
...
P must know the nature and quality of the act
...
Also if p asks for all of the risks, d must tell
...
*Professional guidelines: DOH
Good Practice in Consent (2001) and GMC Codes of Practice
...
Consent
must be freely given: Freeman v Home Office
...
g
...
g
...
Non-consenting adult patientsGeneral Rule: A dr cannot provide treatment without consent of competent p
...
*Note the exceptions: implied consent to touching in ordinary course of life (Collins v Wilcock); forced
treatment and public policy (Robb v Home Office); CF St George’s Healthcare NHS Trust v S; notifiable diseases -Public Health (Control of Disease) Act 1984, Pubic
Health (Infectious Diseases), Regulations1985; The Mentally Ill; Mental Health Act 1983 eg to prevent suicide - Savage v South Essex Partnership NHS Foundation
Trust2
...
Treatments that cannot be consented to*No right to demand treatment*Proper medical treatment does not constitute an offence - R v Brown*Certain
treatments e
...
Female Circumcision (FGMAG 2003)*Body Dysmorphic DisorderINCOMPETENT PATIENTS 1
...
P’s are presumed to be able to consent (s1(2) MCA) *Under s
...
*Otherwise:Advanced Decisions (living wills) s24 MCA: *must be made when person over 18; competent when
decision made; only relevant if person lacks capacity to consent to treatment; only allows negative decisions ie to refuse treatment and its continuation; if decision involves
the denial of life-saving treatment, it must be in writing, signed and witnessed
...
Lasting
Power of Attorney -S
...
*P must be over 18 and
have capacity*There are strict formalities given under schedule 1 MCA
...
*Reference made to the p’s best interests
...
The concept of best
interests of p*Application to Court*S
...
*Re F (Mental Patient: Sterilisation)*S1(6)- the least restrictive action to ensure the patients rights and freedoms
...
*Ref: Code of Practicd (DCA 2007) and factors to consider under s4
...
Restraining is the use of or threat of force to secure an act which is p resists OR a restriction
of p’s liberty of movement, whether or not p resists
...
2
...
1 Family Law Reform Act 1969 - all
persons under 18*A child aged 16-17: s
...
Re T (Jehovah’s Witness)/ Re E (Jehovah’s Witness)/ Re S (Jehovah’s Witness)*If a child cannot consent a person with Parental
Responsibility can consent for a child (DoH 2001:a)*Defence of Necessity - s
...
8 Children Act 1989, Glass v UK, disagreement
between Parties
...
Ethical issues of
abortion: The moral status of the foetus – is the foetus a person? The rights of the pregnant women – does the pregnant women have the right to decide if she is going to
carry the baby to full term?MORAL STATUS OF FOETUS*The foetus is a person from the moment of conception: The foetus is not yet a person but has the potential to
be one
...
*Foetus becomes a person at 14 days (primitive streak)*Foetus
becomes a person from quickening (movement)
...
*Foetus becomes a person when it is capable of sensation this is around 20-24
weeks*Foetus becomes a person at birth
...
*Right to self-determination emphasises physical invasiveness of abortion
– Jarvis Thomson ‘The Violinist’
...
Does the law give the women the right to an
abortion?LEGAL STATUS OF THE FOETUS*A foetus is not a person until it is born: “the foetus cannot have any right of its own at least until its born and has a
separate existence from the mother
...
*So what is the foetus? Attorney General’s Reference (no 3 of 1994)(1998) Lord Mustill: the foetus is a unique organism
...
ABORTION: THE LAW*Offences Against the Person Act 1861, s58 and s59 -‘procuring the miscarriage of a women by a third party’
...
The killing of a child "capable of being born alive”
...
*The Abortion Act 1967 as amended by s37 Human Fertilisation and Embryology Act 1990 - S1(1) states that a
person shall not be guilty of an offence under the law of abortion when termination is performed by a registered medical practitioner and two registered medical
practitioners have formed the opinion in good faith
...
Unclear as to what physical or mental health means
...
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or(c)that the continuance of the
pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or(d) that there is a substantial risk that if the child were
born it would suffer from such physical or mental abnormalities as to be seriously handicapped
...
Action by child - congenital disability, wrongful life claim
...
Action by parent - wrongful contraception claim,
wrongful birth claim
...
*Causation can be a major stumbling block*Congenital Disabilities (Civil Liability) Act 1976 -S 1(1): The Act enables a child to sue for damages in respect of
injuries inflicted before birth
...
*S4(1):The child must be born alive, there is no action for wrongful
death*Disabled is given a wide mean to encompass any personal injury: “any deformity, disease or abnormality including predisposition (whether or not susceptible of
immediate diagnosis) to physical or mental defect in the future
...
that his disabilities were caused by an “ocurrence” that affected
either parent’s ability to have a normal healthy baby, the mother during pregnancy or during the course of birth (s1(1) and (2)
...
The person responsible for this occurrence
was liable to the affected parent (s1(3)), ie there must be a breach of a duty of care to his
...
*There are also a number of defences: S1(4) the
defendant is not answerable to the child if at that time either or both of the parent knew of the risk of their child being disabled; but if it is the child’s father this does not
apply if the mother does not know
...
Added by Human Fertilisation and Embryology Act 1990
...
*Mackay v Essex AHA - To impose such a duty would be contrary to public policy because it would violate the sanctity of human life and devalue
the life of a handicapped child
...
ct thought
that neither the doctor nor the mother were under a legal obligation to the foetus to terminate its life
...
Action by parent: wrongful contraception claim - cases where the parents were deprived of the opportunity to avoid the
conception or pregnancy
...
However, owes a d of c to both partners if they come together
...
This is a question of fact which
the judge has to decide on the ordinary basis of a balance of probabilities
...
*Specific problems - Failure to diagnose pregnancy at time
of sterilisation Allen v Bloomsbury Health Authority/ Crouchman v Burke
...
‘mother’s claim’: those
that derive from the pregnancy itself
...
‘parent’s claim’: those that derive from the upkeep of the resulting child -Udale v Bloomsbury AHA (these costs are not recoverable
for public policy reasons)
...
CF Emeh v Kensington and Chelsea and Westminster AHA – disabled’s child
maintenance costs were recoverable
...
*Parkinson v St James and Seacroft University Hospital NHS Trust - Mrs P gave birth to a disabled child following an negligent sterilisation
...
*Groom v Selby - Unnoticed pregnancy child developed meningitis after
birth as a result of contracting salmonella from mother’s birth canal
...
Rejected her claim for the
extra costs of child care occasioned by her disability, but allowed a conventional award
...
Effect of McFarlane? Rand v East Dorset HA
...
On death –t raditional rule: Doodeward v Spence -‘there is
property in a corpse’ per Lord Griffin*Confirmed in R v Kelly (were parts of a dead body have been removed and subjected to preservation then the body part acquires the
character of property)/ Dobson v North Tyneside HA/ AB v Leeds Hospitals NHS Trust (lawful to retain organs unless objection)/ Yearworth v North Bristol NHS Trust
(sperm was property)HUMAN TISSUE ACT 2004*Passed after scandals in several hospitals were retaining organs from deceased children without authority from their
parents
...
Issues licenses for storage and use of tissue
...
Covers issue of
consent for living and dead humans
...
*S
...
33 bans payment for live organs or cadaver organs
(although expenses are permissible)TRANSPLATING ORGANS AND CONSENT*Live organ donation• Cadaver organ donation• Xenotransplantation (from animal to
human transplantation - medical/ethical issues)• Genetically created organs• Artificial organsLiving Donors*S
...
g
...
A living person who has never met the possible recipient may be
a donor
...
33 HTA 2004 ‐ it is a criminal
offence to remove organs from a living person to transplant into another, unless permitted under Act*Removal and use of organs will however be lawful if there are no
payments made for the organ and the requirements of the HTA have been complied with
...
*Re child donating – must get approval from ct even if child is Gillick competent
...
Ct has to be satisfied it is in donor’s child best interests
...
Non-generative tissue – e
...
, cornea, heart valves Organs – e
...
, heart, lungs, kidneys
...
, small bowel are all capable of transplant
*Code of Practice Donation of Organs, Tissue and Cells for Transplantation (Code 2)*Incompetent adult donors- covered by Mental Capacity Act 2005
...
Consent: advanced directive (can only relate to refusal of treatment – grey area for
donating organ); if in best interests (Re Y (Mental Patient: Bone Marrow Transplant)-child lacked capacity and transplant went ahead for bone marrow to sibling); power of
attorney to give authority for person make decision for them (only for treatment – questionable? Again best interests)
...
*S 3 HTA 2004 defines appropriate consent*HTA Code of
Practice- approach should be made to deceased’s relatives to establish any known wishes of the deceased
...
g
...
Nominated representative can make the decision
...
*BMA - Opt-in (or Explicit Consent) systems of
organ donation require citizens to register their permission for their organs to be removed after their death and be used for another person in need
...
This represents the current law in the UK
...
This represents the legal position in countries like Spain
...
Brain Stem Death
...
It must be demonstrated that the several components of the
brain stem have all been permanently destroyed
...
It must be proved that the patient is unable to breathe spontaneously
...
’Academy of Medical Royal
Colleges COP 2008LEGAL DEFINITIONS:*R v Malcherek; R v Steel - ‘ irreversible death of the brain stem which controls basic functions such as breathing’ Lord
Lane*Re A - A child on a ventilator and certified as brain stem dead was also legally dead even though the parents took the view that he was still alive
...
ct had to consider legal position of a dr who switches of life support machine
...
26(2) - Authorises the HTA to issue codes of practice which set out
whether a person has died in cases involving transplantationPROBLEMS*Anencephalic babies (technically dead or legally alive – if clinically satisfy brain stem criteria
then legally dead); handicapped babies; brain dead pregnant womenPROCEDURES ON DEATH• A Code of Practice for the Diagnosis and Confirmation of Death
...
Academy of Medical Royal Colleges October 2008• Transplantation Guidelines (British Transplantation
Society) – Code of Practice for Organ Transplant Surgery [1979]• Death certificate – families can challenge cause of death on certificate
...
14(1) CJA 2009, a coroner may order a
postmortem examination
...
The unlawful causing of death of a human being under the Queen’s
peace
...
Definition of Death: heart & lung, brain, brain stem*R v Steel/ Airedale NHS Trust v Bland2
...
Causation*the But For Test*Barnett v Chelsea & Westminster HMC/ R v White/ R v Smith*The Principle of Novus Actus Interveniens4
...
58 Offence Against the Person Act 1861
(Abortion)*s
...
The Year & Day Rule (now repealed)*Mens Rea - “Malice Aforethought”
...
Types of Intention: Direct / Oblique
...
MANSLAUGHTERVoluntary (Partial Defences Available)1
...
2(1) Homicide Act 1957)2
...
3 Homicide Act 1957 and s
...
Suicide Pact (s
...

Unlawful Act Manslaughter2
...
Corporate Manslaughter(Corporate Manslaughter & Corporate Homicide Act 2007)4
...
7
ECHR)
EUTHANASIA- ACT (ACTIVE) OR OMISSION (PASSIVE)*Act – where a Doctor by conduct deliberately causes a patient to die
...
(See Bland’s Case) *Note: Bioethical Distinction between the twoSTATE OF PATIENTInvoluntary (Against patient’s wishes) (See Murder)Non-Voluntary
(Without a patient’s consent or objection)*PVS Patients and Bland’s Case/ *Ms
...
*S
...
2
(As amended by s
...
*Principle of autonomy prevails – every competent adult p has the
right to refuse treatment, even if refusal will result in death
...
*Arts
...
Wished to
travel to Switzerland to attend Dignitas Clinic
...

HL agreed that a decision to commit suicide was covered by Art 8(1) ECHR
...
DPP ordered to provide guidance to clarify the situation
...
*DPP (2009) Interim Policy for
Prosecutions of AS*Requesting Treatment -R (Burke) v GMC - (Art 3 and right to decide when to die, i
...
the right to liveGlass v UK [2004] (Parents prevented doctors
injecting child with lethal pain killing drug
...
An ambiguity or duress, dr should not give effect to advanced directive were it might lead to death
...
S4 MCA 2005 ‘life sustaining treatment’
...
*How does the court deal with
incompetent patients, such as those in PVS, should those caring for them wish to cease treatment? Airedale NHS Trust v Bland- HL stated it would be lawful to remove
ANH as it would be in Bland’s best interests
...
Note both
Lords Goff and Mustill’s judgments
...
*severely disabled adults s4 MCA 2005 – Re R (Adult:
Medical treatment)
...
*Physician Assisted Suicide: Doctrine of Double Effect: R v Adams- Dr Adams acquitted by Lord Devlin using
the doctrine of double effect

---