Analyse the strengths and weaknesses of the law of negligence, and discuss possible modifications that might be made to it.
Background / Context
Society in general is becoming increasingly litigious. In the context of health care, law in general and health care law in particular has a profound influence on practice. Managers and clinicians are called to account for their actions, justifying resource decisions as well as clinical judgements. An understanding of the law and moral reasoning is thus an important knowledge base for health care staff. This course aims to provide an overview of the legal and ethical frameworks, which underpin and govern the practice of health care and research.
Indicative Content
• English legal system.
• Ethical theories.
• Negligence.
• Consent.
• Resource allocation.
• Confidentiality.
• Professional Conduct.
• Children and the law.
• Mental Health and the law.
• End of life decisions.
• Moral dilemmas.•
Essay Question:
Analyse the strengths and weaknesses of the law of negligence, and discuss possible modifications that might be made to it.
Word count: 3000
Marking Guide:
FHEQ qualification descriptor LEVEL 5
Honours degrees are awarded to students who have demonstrated; Relevant skills
Typically, holders of the qualification will be able to Related tasks
To achieve a pass in this assignment students must;
1 knowledge and critical understanding of the well-established principles of their area(s) of study, and of the way in which those principles have developed effectively communicate information, arguments and analysis in a variety of forms to specialist and non-specialist audiences, and deploy key techniques of the discipline effectively • Be able to demonstrate an understanding of a variety of legal concepts and principles pertinent to the topic.
• Be able to demonstrate an understanding of a variety of ethical concepts pertinent to the topic.
2 ability to apply underlying concepts and principles outside the context in which they were first studied, including, where appropriate, the application of those principles in an employment context Demonstrate the qualities and transferable skills necessary for employment requiring the exercise of personal responsibility and decision-making. • Be able to apply appropriate case law and/or legislation to the topic.
• Be able to apply ethical theories and ethical principlism to the topic.
3 knowledge of the main methods of enquiry in the subject(s) relevant to the named award, and ability to evaluate critically the appropriateness of different approaches to solving problems in the field of study use a range of established techniques to initiate and undertake critical analysis of information, and to propose solutions to problems arising from that analysis • Be able to analyse the legal and ethical issues relevant to the topic, utilising a balanced and non-judgemental approach.
• Be able to develop conclusions that flow logically from the analysis, and which are both realistic and accurate.
• Demonstrate a wide range of reading around the topic.
4 an understanding of the limits of their knowledge, and how this influences analyses and interpretations based on that knowledge. undertake further training, develop existing skills and acquire new competences that will enable them to assume significant responsibility within organisations.
• Be able to use the Harvard system of referencing consistently and accurately.
• Be able to produce a narrative that is fluent, articulate and grammatically correct.
Reading list (recommended by teacher):
– Avery, G. (2013) Law and Ethics in Nursing and Healthcare. London. Sage Publications.
– Bartlett, P. and Sandland, R. (2014) Mental health law: policy and practice (4th ed.). Oxford. Oxford University Press.
-Beauchamp, T.L. and Childress, J. F. (2013) Principles of biomedical ethics (7th ed.). Oxford. Oxford University Press.
– Brazier, M. and Cave, E. (2011) Medicine, patients and the law (5th ed.). London. Penguin.
– Carr, C. (2012) Unlocking Medical Law and Ethics (3rd. ed.). London. Routledge.
– Dimond, B. (2011) Legal aspects of nursing (6th. ed.). London. Prentice Hall.
– Griffith, R., Tengnah, C. and Bach, S. (2008) Law and professional issues in nursing. London. Learning Matters Ltd.
– Harris, J. (2001) The value of life. London. Routledge.
– Herring, J. (2012) Medical law and ethics (4th. ed.). Oxford. Oxford University Press.
– Hope, T., Savulescu, J. and Hendrick, J. (2008) Medical ethics and law: the core curriculum. London. Churchill Livingstone Elsevier.
– Kennedy, I. And Grubb, A. (2000) Medical law: text with materials. London. Butterworths.
– Mason, J. and Laurie, G. (2013) Law and medical ethics (9th. ed.). London. Butterworths.
– Melia, K. (2004) Health care ethics. London. Sage Publications.
– Montgomery, J. (2007) Health care law. Oxford. Oxford University Press.
– Pattinson, S. D. (2011) Medical law and ethics (3rd. ed.). London. Sweet & Maxwell.
– Seedhouse, D. (2009) Values-based decision-making for the caring professions. London. John Wiley & Son.
Notes to help you write the essay
Guidance Notes for HS216 Essays
The following notes are intended to give some guidance on what is expected in each of the essays, but they should not be seen as being “cast in stone”. Thus, the student is entitled to take a different approach from the ones outlined below. The key things to bear in mind are that these essays should demonstrate knowledge of the law and ethical principles, and be able to analyse competing arguments.
1. Negligence
This essay could begin with an outline of the elements of Negligence and mention the key cases that have helped to formulate the concept. It then requires a balanced discussion of the strengths and weaknesses of the tort of Negligence. For example, in healthcare, it may be protective of a national institution (the NHS), but does this work to the benefit or detriment of the general public? It has certainly stood the test of time, which may be a strength, but may also suggest inflexibility. Here, you could cite cases where the courts have modified the law: e.g. Bolam, modified by Bolitho; Sidaway, modified by Chester.
Inevitably, there have been a variety of criticisms of the law of Negligence and you could weigh up the relative merits of these criticisms. For example, the law makes it very difficult for claimants to win cases, and you could cite a few examples of this. It may also be inequitable, and the adversarial nature of court actions encourages defensive attitudes (and a code of secrecy) within the NHS. You could then compare this position with that of the National Patient Safety Agency, which encourages a systems-based approach to error: are these two positions reconcilable?
There have been some changes made that were intended to facilitate the process of Negligence claims (e.g. the Woolf reforms 1996; the NHS Redress Act 2006). To what extent have these been successful? Perhaps a better system would be that of a “No fault” system of compensation, as practised in New Zealand and Scandinavia. What are the arguments for and against such a system?
2. Consent
This essay requires, above all else, an understanding of the Mental Capacity Act 2005. You could begin, therefore, by outlining the conditions required for truly informed consent, and then consider each one in more detail. For example, how is competence assessed (see Re C [1994] and MCA, section 3), and could this test be manipulated to get the result that the healthcare professionals want? Does refusal of life-saving treatment necessarily suggest incompetence? The MCA Code of Practice imposes an obligation upon healthcare professionals to enhance decision-making autonomy whenever possible, but how could this be done?
How much information should a patient be given before making a decision about treatment? Compare Sidaway with the more modern approach in Chester v Afshar [2004]. Look also at the concept of therapeutic privilege (i.e. the withholding of information from a patient if it is felt that it might damage his/her psychological health) — does this have a legal and moral basis, and what are the limits to its exercise? Does the patient have a right to waive information if s/he has no wish to hear it or believes that it will be upsetting?
To what extent is consent voluntary in a healthcare setting when there is an unequal relationship of power between doctor and patient? You could include the concept of Advance Decisions (from Re T [1992] and MCA 2005, sections 24-26), outlining the criteria necessary for them to be valid, and incorporating one or two cases where they have been invoked. What are the difficulties of drafting a legally binding Advance Decision, and can they be overcome?
Where patients’ choices disagree with medical advice, there is a conflict between Autonomy and Beneficence. After explaining these concepts, consider how “best interests” are determined. Who decides, and what things need to be taken into account (see MCA Code of Practice)? You could also include discussion of the force feeding of anorexic patients as an example of this conflict in action. Similarly, there may be public health considerations that permit the over-riding of a patient’s autonomy, even when competent (e.g. the patient who has an infectious disease and refuses to be isolated in hospital). Do the same considerations apply if an HIV-infected patient refuses to inform his sexual partners of his disease?
3. End of Life
This essay could begin with definitions of the various types of euthanasia (i.e. voluntary, non-voluntary, involuntary, and their active/passive forms), and should state the legal position in the UK (and elsewhere). It could then move on to a discussion of those situations where modifications to this position have been made. Thus, the PVS cases (most notably, Bland) will feature here, and you could discuss whether or not the removal of artificial nutrition and hydration (ANH) constitutes euthanasia. You might also look at the Goff criteria for withdrawal of ANH (from Bland) and consider how successful they have been in establishing clarity in this area. Physician-assisted suicide is another modification, which, although not legal in this country, is being accessed abroad by an increasing number of people. The Director of Public Prosecutions has given guidance on how those who assist others with this process can be protected from prosecution, and you could discuss these criteria. Finally, you could look at the Dutch experience of voluntary active euthanasia (VAE), outlining its criteria, and considering the evidence for whether or not it has initiated a slippery slope.
At this point, you could look at the arguments for VAE (e.g. it recognises patient autonomy, it brings the practice out into the open so that it can be carefully monitored, and it enables patients to die with dignity). You then need to examine the arguments against VAE (e.g. it contravenes the sanctity of life principle, patients may be influenced by others to end their lives, it hinders advances in palliative care, and it may be the first step towards non-voluntary and involuntary euthanasia). Which of the arguments are the stronger, and why? Is it possible to provide safeguards for VAE that are sufficient to prevent abuse? Should the law be changed in this country?
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