Free «Health Service Managers and the Law» UK Essay Paper
Starting from the fifth century BC, healthcare professionals have been swearing to uphold the Hippocratic Oath. Nevertheless, since then, health care, provider liabilities and responsibilities have developed to such extent, that they make a process of adhering to the oath progressively difficult. The current paper will discuss development and application of the tort law, especially the tort of negligence. It will also demonstrate which constituents Australian courts take into consideration in deciding whether an accused individual breached their standard of care, paying attention to the duty of wan in the law of negligence for health professionals.
The facts demonstrate that a tort is viewed as a civil wrong in common law jurisdictions. Tort provokes another person to be in distress and suffer harm or loss leading to legal amenability for the individual, who enacts the tortious acts, outlined as a tortfeasor (Stewart & Stuhmucke, 2009). Despite the fact that crimes might be considered as torts, the reason of some legal action is not necessarily outlined or viewed as a crime because harm might be a reason of negligence. Tort law appears to be discrepant from the criminal law on a basis of two major facts. Firstly, torts might be a result of criminal or intentional acts as well as negligence (Trindade, Cane & Lunney, 2007). Secondly, tort lawsuits appear to have a decreased proof burden, for example, utilizing the superiority instead of evidence, which is beyond a reasonable doubt (Beran, 2013). There also are some situations, when a claimant might predominate in a tort case even despite the fact that an individual who reportedly inflicted harm was legitimated and justified during earlier criminal trials (Campbell, 2015).
In regards to Australia, tort law stands for the body of precedents (meaning previous cases) and legislation, which commonly outlines the operation of Australian tort law (Stewart & Stuhmucke, 2009). This law is a method of interfering in relationships between private individuals in order to amend and rectify some behavior or wrong action (Stewart & Stuhmucke, 2009). There is a number of different torts, which typically derive their legal status from the Australian common law. Due to the fact that courts can outline existent torts or even recognize new ones via the common law, the tort law can be viewed as limitless and adaptable to innovative conditions and circumstances (Hunt, 2013).
Tort of Negligence
Negligence appears in situations when one individual owes another a duty of care. The Civil Liability Act 1936 is applied in Australia in order to analyze and assess the negligence and responsibility, which they encounter as the outcome if one performs any negligent acts on their part (Dobson, 2015). Thus, the term is outlined in legal manner as a norm of behavior, to which individuals have to abide in order to impede being defined as negligent, instead being a behavior which a rational person will demonstrate appearing in the analogous conditions. According to the legal sphere, medical malpractice can be viewed as a particular sphere within the general domain of negligence (Dobson, 2015). Negligence can be defined through four major elements and conditions, which have to be met for the claimant or complainant to recover damages. The first constituent stands for the duty: it is analyzed whether the accused person owed claimant a duty of care (Khan, Robson & Swift, 2012). The second constituent concerns the breach of duty: it is analyzed whether the accused person breached of their duty of care. This constituent can be viewed as synonymous to the standard of care (Dobson, 2015). The third constituent regards harm: it is examined whether the claimant suffered any injuries or other possible damages. The final constituent stands for causation. Thus, it is viewed and analyzed whether damage or injury was caused by the breach of the duty of care (Dobson, 2015). All four elements should be satisfied, because otherwise the claimant will not have the possibility to prove and demonstrate that the accused person appeared to be negligent.
Duty of Standard
The second constituent is of outmost importance for the current paper. A duty or standard of care stands for a lawful and juridical commitment and responsibility to elude inducing harm, appearing in cases when harm can be viewed as rationally and reasonably predictable in a case when the care is not taken (Mahar & Burke, 2011). This is a situation when there should be a sufficient and adequate relationship of closeness and proximity between two individuals for a duty of care to exist. The relationships between a doctor and a patient are an example of such (Madden & McLiwraith, 2013). Thus, the court will initially consider and analyze the standard of care that is expected in such conditions in order to define whether a duty of care was breached. In fact, the standard of care is outlied by analyzing the actions that a rational individual would or would not perform in the analogous conditions (Kapp, 2014). Thus, in case an accused person acted in a reckless or imprudent manner, it demonstrates that this person breached their duty of care. In fact, Australian courts find healthcare professionals negligent in situations, when there was a failure to inform a patient of risks and hazards, which later eventuated allowing the patient to establish that they would decline medications if they had been appropriately advised and informed of the risk (Dobson, 2015). Thus, the case of Rogers vs. Whitaker mentioned above demonstrates that the High Court found the surgeon was negligent in not warning the one eye-blind patient of the hazard that the vision in the good eye could be affected by the surgery even regardless the fact the risk was exceedingly rare. The court accepted the patient's evidence concerning the fact she would not have undergone the surgery if she had been appropriately warned of the risk (Abikhair, et al., 2014). There are some situations, in which the reason and cause of injury appear to be obvious. Nevertheless, in the majority of situations the reason of a damage or an injury can be viewed as more complicated. For instance, situation might involve several events, which could have provoked damage or injury (Australian Council for Safety and Quality in Health Care, 2016).
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The rules of the Australian common law governing the standard of care, which healthcare providers have to meet when medicating patients, were outlined by the High Court in 1992 (Bending, 2015). They vividly point that healthcare providers are supposed to provide reasonable care and demonstrate rational skills when equipping professional services to the patient. In addition, they are supposed to demonstrate these skills and care due to all facets of their professional conduct (Bending, 2015). It is important to mention that there are discrepancies between the juridical regulations defining the standard of care, which healthcare practitioners should take into account diagnosing and treating patients and when equipping patients with data/information and advice regarding medication (Beran, 2013). Nevertheless, courts eventually define the standard of care instead of medical profession for both cases.
The law, as stated in the above-mentioned case of Rogers vs. Whitaker, concerns the reasonableness regarding the standard of care. In accordance with this case, the healthcare provider owes patients a duty of care, which he breached. As healthcare provider was unable to meet the necessary standard of care, law can consider injuries as compensable (Breen et al., 2014). The second element that stands for the standard of care owed by a healthcare provider appears to have specific significance, as it is connected with the claim that Australian law treats healthcare providers with excessive and illegal austerity (Hunt, 2013). A doctor has to meet the juridical legislation concerning the standard of care. Thus, law does not require perfection of healthcare practitioners or health service managers. It also does not require them to assure or guarantee the prosperity of any medical treatments (Dean et al., 2013). On the other hand, the law requires healthcare workers to provide proper care and professional services. Therefore, a failure to conduct oneself rationally within professional conditions might expose healthcare workers to legal responsibility for negligence; taking into account the fact that the claimant is capable of establishing the suffer damage was provoked by the healthcare worker’s negligent conduct (Khan, Robson & Swift, 2012). It is also important to mention that the standard of rational skills and care concerns the ordinary-skilled individual. This is the main reason why law does not require healthcare workers to have the highest expert skills, as it is only sufficient for the healthcare worker to exercises the ordinary skills of a typical qualified individual practicing in given medicine field (Madden & McLiwraith, 2013). This means that an average practitioner has to exercise typical normal skills of an ordinary qualified average practitioner, a neurosurgeon has to exercise typical normal skills of an ordinary competent neurosurgeon, etc. Therefore, the healthcare worker is supposed to exercise proper care and skills regarding all facets of the professional services equipped by healthcare workers. As a matter of fact, the High Court of Australia has highlighted the fact that there is a solid discrepancy between diagnosing/treating and the provision of advice/information to a patient (Nimmon & Stenfors-Hayes, 2016). Nevertheless, the High Court established that law would not treat medical professionals discrepantly from members of other professional groups assessing and viewing whether health service managers or healthcare workers have breached the standard of care to a claimant. As solicitors, bankers and other professionals, healthcare workers in Australia cannot escape responsibility in negligence merely because their conduct has been in conformity with an accepted body of practice within their profession. In addition, Australian common law is very clear regarding the fact that a healthccare provider has a duty to warn patient about possible risks of a treatment or procedure that they are about to undergo, allowing patients to be informed in medical decisions (Bending, 2015). In addition, there are particular provisions connected to the duty of healthcare provider to warn of risk, encompassing proactive and reactive duty (Beran, 2013). The proactive duty presupposes that healthcare professional is supposed to provide patient with sufficient information, which will help him/her in making a considerate decision of accepting/not accepting medication due to all information of medication-connected hazards (Bending, 2015). On the other hand, reactive duty stands for the fact that healthcare provider has to give patient all the required information in order to make informed well thought out decision concerning agreeing/not agreeing to receive medication grounded on the patient’s requirements (Bending, 2015). Nevertheless, the Australian court have not yet considered whether a health care professional owes a duty to warn a third person of risks of HIV transmission at the expense of breaching the duty of confidentiality owed to a patient (Cleland & Mahar, 2009). In fact, this question incorporates the intercourse of two distinct spheres of law, including the obligation of medician based on law and Hippocrates Oath, and the possible legal duty of care owed to third parties (Dean et al., 2013).
Breach of a Standard of Care
The current position in Australia for a claimant to prove a breach of a care standard requires satisfaction of three constituents. Firstly, the care provider knew or had to know the risks and hazards, which are outlined as a rational foresee-ability. Secondly, the risk or hazard was significant. Thirdly, a rational individual in the analogous position of a healthcare provider would have taken preventative measures against the risks and hazards. The second element stands for the changes that have been implemented by the Civil Liability Act (Gallagher et al., 2007). Moreover, the court will also consider preventative measures, as they might differ in discrepant conditions. The statute specifies the considerations, which a rational individual would have in making decision to take preventive measures against risks and hazards (Hunt, 2013). They incorporate the possibility that harm or injury might occur in case the care was not taken. Secondly, they concern the probable seriousness of harm or injury (Mahar, et al., 2013). Thirdly, they regard the burden of taking preventative measures to impede the hazard of injury or harm. Finally, they stand for the possible benefit of activity that exposes others to the risk of harm (Mahar, et al., 2013). In Australia, courts can still view and consult the common law in reaching a decision.
Thus, in defining whether the individual knew or had to know of the risk and hazards, the court can apply a case from 1932, known as Donoghue v Stevenson, as it demonstrates the significance of the foresee-ability of damage or injury occurring for the claimant because of the accused person’s behavior or action shortage (Trindade, Cane & Lunney, 2007). In this case, due to the Civil Liability Act the negligence appears to be an induced harm, while this harm or injury appears within the scope of the accused person’s liability. According to the Australian Civil Liability Act it can be defined as “a necessary element of the occurrence of the harm” (Dobson, 2015, p. 4).
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In addition, the Civil Liability Act analyzes whether the foresee-ability can be considered as relevant for the scale and extend the responsibility of an individual in breach to expand caused injury or harm. Nevertheless, it is important to mention that Australian courts consider different factors, including the ‘nova causa interveniens’, which stands for an interceding reason (Abikhair et al., 2014). The Civil Liability Act considers this factor specifically because of policy reasons. In fact, it would be irrelevant and inadequate to hold one side for all consequences especially because of such intervening facets, as person’s own choices (Campbell, 2015). According to fact that “rational individual would have taken preventative measures against harm”, the Civil Liability Act outlines this issue as ‘carelessness’ (Dobson, 2015, p. 5). Nevertheless, it is also important to mention that Australian courts now consider such factors as cost and the dimension of the risk while analyzing preventative measures.
The paper demonstrates that developments of the law allow patients to receive an information about possible risks, while healthcare professionals become acutely aware of their obligations to equip patients with meaningful advice regarding hazards and risks. In addition, the paper demonstrates that there have been some alterations to medical negligence but, generally, courts interpret the tort law reforms in compliance with common law with ambiguities in it. This is a main reason why healthcare professionals are held liable for negligence.
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