Word Limit: Part 12,000 words
Part 23,000 words
You should submit your essay on time, unless there are pressing circumstances which prevent this. Late submissions will be penalised as set out in the Student Handbook. Should you need an extension, you should contact the Course Director
Either Part 1 or Part 2 may be submitted in draft to your tutor for comments, if you so wish, prior to formal submission.
Part 1 (40%)
You are required to answer all of the following questions. The word limit is 2,000 words for the combined answers.
1. Examine the extent to which patient autonomy is reflected in clinical practice by reference to relevant case law and statute considering the situation in relation to either children or adults.
2. The recent high profile cases of Evans and Gard saw parents attempting to use the courts to force medical staff to provide treatment.
By reference to relevant case law analyses the extent to which the HRA can be used to force medical staff to provide life-sustaining treatment.
3. It cannot be justified to breach patient confidentiality in the public interest. By reference to relevant case law and statute determine the extent to which this statement is true
4. Outline briefly the 4 key elements which must be established to make a successful medical negligence claim
Part 2 (60%)
You are required to answer the following question. The word limit is 3,000 words.
‘While judicial action is by no means hopeless, patients have a difficult time challenging decisions where resource allocation has denied them access to treatment”.
Critically evaluate this statement taking into consideration legal challenge by way of public law or private law. Your answer should also take into account challenge using the Human Rights Act 1998 and EC law
You must indicate at the end of your coursework the total number of words used. You are not allowed to exceed the word limit and if you do so, the coursework mark will be reduced.
For the purposes of the word limit, the following are not included:
Reductions for exceeding a word limit
Your coursework mark will be reduced as follows:
E.g. if the coursework has a word limit of 2000 words and you exceed this by 400 words then the penalty will be a reduction of 4 marks – i.e. a mark of 61% will be reduced to 57%.
The issue here is to determine the extent to which patient autonomy is reflected in clinical practice with respect to an adult patient availing such services or treatments.
While considering bio-medical law and principles of bio-medical ethics it would be important to note the principles developed by Beauchamp and Childress. Autonomy is the first principle covered under it and it states that when receiving a form of treatment or option for one of various options of treatment the patient should have the right choose the form and kind of treatment or whether to opt for the same at all. The final principle propounded by Beauchamp and Childress is justice which speaks of the inherent need of the bio-medical fraternity to meet out equality and fairness to all those that seek its services.
In case of patient autonomy the first case law or judicial precedent that would have to be gauged is the court’s decision in Re T. In this case, the court held that barring mental incapacity a person would be able to consent to the form of kind of treatment and/or choose any of the alternative forms of treatment and in such a case, this consent would be supreme. This would extend beyond notions of sensibility that other individuals may have regarding the decision taken by the patient. This would however extend only to adults. However to this law of autonomy a principle of judging the capacity of a person to make such a decision was analysed by the court in Re C. In this judgment the court stated that in order to decide the capacity of the patient to decide it must be determined if the person is able to understand the nature, the purpose and foreseeable effects of the proposed treatment that they are likely to receive. Thus, this would be upheld even if such person was mentally incapacitated in other ways. This reinforces the limitations to autonomy which a patient may have and exercise. This position has been further fortified by the judgment of the court in Re B,Ms v An NHS Trust Hospital.While considering the mental capacity of an individual the provisions laid down in the Mental Capacity Act, 2005 would also be relevant. This has been reiterated in the decision in Re F (Mental Patient: Sterilisation).
Patient autonomy as enforced by the courts depends on a variety of jurisprudential considerations. The first among such are the key principles developed by Beauchamp and Childress. Autonomy as a concept as defined by Beauchamp and Childress would denote the right of choice conferred to the patient in terms of treatment or any kind of bio-medical service availed. This is further reinforced legally through the concept of consent. This however is from the perspective of an adult patient as for minors various other provisions would have to be adhered to.
Thus a person who does not have a mental incapacity to judge the nature or purpose or effect of the treatment would be disqualified from being able to exercise such consent as per the judgment in Re C. This would also have to take into consideration the various provisions of the Mental Capacity Act, 2005 as laid down by the judgment in Re F (Mental Patient: Sterilisation). Resultantly for an individual with no such encumbrances under legislation or case law to be considered incapacitated would have absolute autonomy over such medical procedures.
To conclude, an adult patient availing medical services and with the ability to judge their best interest as well as the nature, required purpose and effect of such treatment would be entitled to complete autonomy over such decisions. Also a person with mental incapacity does not have the autonomy to give consent for his medical treatment.
The issue here is to determine the extent to which the Human Rights Act, 1998 can be used to force medical staff to provide life sustaining treatment.
In determination of the possibility of using the Human Rights Act, 1998 to force medical staff to provide life sustaining treatment would be brought about by Article 2 which defines the right to life, Article 3 which protects from torture or any such kind of degrading inhuman activity, Article 8 which protects the respect and dignity of family life as well as ones private life and finally Article 14 which is a protection from discrimination from freedoms provided in the statute. However, a cursory glance at the provisions would enforce that in light of such existing provisions it would not be possible to force medical professionals to provide life sustaining treatment. This has also been reiterated by the court in the judgment in R. (on the application of Burke) v GMC. The court in this case opined that there is no absolute duty or mandate to keep people alive and thus any medical professional could also not in any case be forced to administer any kind of treatment which they are unsure of or are sure would have to effect. It was also determined by the court that there must be a regulatory framework which is domestic and compatible with Article 2 and also the patients earlier expressed wished and the opinions of all close relatives and those who may be affected by such death. This was laid down by the court in Gard v United Kingdom.
Considering the rights conferred under the provisions of the Human Rights Act, 1998 it would be clear that all medical professionals would have a right to refuse treatment when they are sure the same would be futile or when they are unsure of such course of action. A medical professional cannot be forced to carry on life sustaining treatment. Thus it would depend on the patient and the consent of the patient as well as the judgment of the attending medical professional on whether such treatment can be carried on. Thus no means of force can be used to enforce the same by virtue of the provisions of the act.
It would also be pertinent to note that in such cases as assisted suicide and euthanasia the medical professionals would be bound by the same principles reiterated herein and thus would not be compelled to engage in any activity that they would not consent to. However the right to health is a fundamental right to every individual but in certain circumstances this right cannot be enforced to obligate the medical practitioners to attend and treat the patients. It is usually occurred in the situation when the patient is not in condition to understand or judge the nature of medical treatment or when a clear consent could not be given for a medical procedure.
To conclude, Human Rights Act, 1998 cannot be used in any way to force medical staff to provide life sustaining treatment. The final decision to treat or attend the patient is derived on the medical practitioners. They have the right to refuse to treat a patient after considering his circumstances and no one has the right to object their action of refusal.
The issue here is to determine if it would be possible to justifiably breach patient confidentiality if the same was in public interest.
Public interest may be defined as the interest of the population at large of a particular territorial jurisdiction. In terms of international law it could extend to the international community as a whole. Thus when the general good of such a populous is threatened or if the peace and tranquillity of such a jurisdiction in threatened the same maybe termed as public interest. It may be noted that public interest would also extend to emergencies relating to ailments which may affect the population at large. In the landmark judgment in W v Edgell the court was of the opinion that in case of public interest a person engaging in any form of public duty such as a clergyman or a medical professional may have to breach his duty of confidentiality and the same would not be an illegality. This position of the court was further reiterated in Z v Finland which concerned a HIV patient and thus access to the medical records of such a patient would be in public interest due to the dangerous nature of such a disease. This position was further reinforced by the courts in Stone v South East Coast SHA.To develop an example among the common public to prevent a disease at large scale, the confidentiality of a patient can be breached as it is used in the interest of entire nation.
Within the framework of the quoted laws as well as the judicial decisions which have been developed by the judiciary over the years would indicate that when the same is in public interest it would indeed be prudent to allow breach of patient confidentiality. This is because in a case where the medical records of a person or the history of the ailments can be a threat to the populous at large the same would adversely affect the functioning of society and would also have negative effects on the existence of the same.
The court in its decisions in W v Edgell, Z v Finland and Stone v South East Coast SHA has continually upheld this idea and has further reinforced the idea that public interest would be supreme in form of governance as it is the populous that the government seeks to protect and serve. Thus, the court has also implement legislations for the same in Access to Health Records Act, 1990.
In conclusion it would be possible to justifiably breach patient confidentiality if the same was in public interest. However the breach of confidentiality to favour an individual party or person which could also cause damage to the interest of patient shall be considered as illegal and actions could be taken against such actions.
The issue here is to determine the key elements which must be established to make a successful medical negligence claim.
In establishing a case of medical negligence, much like negligence as a tort, would have to be established by the claimant through the necessary or key elements of such a case. The first element involved in establishing a claim for negligence is duty of care. This has also been reiterated by the court in Barnett v Chelsea and Kensington HMC. The second element is standard of care which is normally practiced in such a procedure and thus acting in such established form of care would absolve the clinician of liabilities as held by the court in Bolam v Friern Hospital Management Committee. Causation would be the cause for the damage which the claimant is making a claim against. It would be pertinent to note that the proximity of such cause is of utmost importance. Applying the “but for” test it would be analyzed if the damage would not have happened at all but for the act or omission claimed against as laid down by the court in Barnett v Chelsea and Kensington HMC.
Establishing a claim of medical negligence depends on the existence of the key factors enunciated above. The first is duty of care. A duty of care is an obligation owed or observed by an individual in consideration of those neighboring him. In terms of a claim for medical negligence the existence of a duty of care would be established as soon as the clinical patient relationship begins which is when the clinician is approached by a patient seeking services. In the case of a medical condition, there is no requirement to find or establish a relationship of duty of care as the duty of medical staff is already includes the duty of care in their ethics. The second element which would have to be established is a standard of care. In all medical procedures a standard of care would have to be maintained and is normally practiced. For instance the patient with severe medical condition needs intensive medical care hence the medical staff should be more attentive towards such patient. Also the treatment policies and procedures would be decided by the medical staff as per the condition of the patient. The procedure would thus have to be established and deviation from the same would also have to be sufficiently shown. The third element is causation where it must be established that but for the act or omission of the clinician the damage being claimed against would not have happened. This element is must to prove an act of negligence because without any causation or breach of duty of care, the victim patient could not file his claims against the medical team.
The three key elements of a claim of negligence are duty of care, standard of care and causation. To prove the act of negligence these three elements are required to be proven by the party who caused the harm or damage. If any of the elements is found missing from the act of negligence then the party would not be able to file his claims under the tort of negligence. Hence there should be a duty of care with a standard of care and its breach must be occurred due to the performance of an act of medical staff. Such act includes the act of omission and intentinally performed action.
Resource allocation and denial of treatment- legal challenges
Society as a whole contributes to and benefits from economy. It would thus be imperative that socio-economic factors are often determinants of lamentable predicaments. The access to a certain standard of healthcare is a necessity for all however in many situations the lower sections of society are unable to find the proper healthcare within the price ranges they can afford. Though there are numerous factors that contribute to the regrettable reality of the healthcare industry as it is the legal factors that contribute to the system and its challenges in providing healthcare devoid of resource allocation. This will be analyzed in the following paragraphs though the perspective of private as well as public law. Thus this essay will endeavor to change to establish these challenges and seek to identify solutions which may be implemented in order to ensure bridge the gap created by socio-economic conditions and provide proper health care to all individuals.
In order to understand the implications of private and public law on access to healthcare or denial of treatment the concepts behind such law would have to be perused. Private law encompasses laws that define and regulate relationships between individuals. In such cases the state is not involved and these primarily regulate to disputes between individuals. Public law however encompasses laws which define and regulate relationships between individuals and the state. These are primarily involved with the regulation of disputes between the states and individuals. A statutory duty is an obligation which must be fulfilled by an individual under a statute. It would be pertinent note that these may be through private law or public law. The first provision that would have to be analyzed is Section 1 of the National Health Service Act, 2006. Section 1(1) provides for a duty imposed on the secretary of state to formulate a comprehensive plan and Section 1(1) (b) of the same dictates that the health plan would ideally have to envisage betterment of such denial of treatment. Section 3 of the Act provides for the formation of clinical commissioning groups which would oversee such betterment. According to Section 3 (1F) this would have to be in pursuance of the plan formulated by the secretary of state. Thus the legislation provides for such a stand to be taken by the government in ensuring the same. Practicality however has opposed such a view and this has resultantly led to being ineffective in aiding those sections of society that are denied treatment due to resource allocation. An example of the same can be seen in R v Secretary of State for Social Services ex parte Hincks. The doctrine of legitimate expectation would also aid in understanding such a position as it would because a legitimate expectation that statutory duties imposed in the secretary of state would be duly observed would arise as would be seen in the case of R v North and East Devon Health Authority, ex parts Coughlan. However this case also clarified the position of the Courts role in enforcing such legitimate expectation thus limiting the ambit of the court’s involvement in the same.
Judicial review is a procedure through which the inaction of such government bodies and office bearers can be challenged in court. This would be a crucial instrument in ensuring that the government bodies would be compelled to observe statutory duties. It would primarily lie from a decision that would be so unreasonable that it could not have been arrived at by a reasonable individual. This was reiterated by the court in Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service. Such instances can be seen in cases such as R v Cambridge Health Authority, ex p B. In this case the court held that when the life of a ten year old girl is in the balance the funding authority must not only state reasons relating to allocation of resources but must at the same time give definite reasons for the decline of such funding. The appeal however failed in court as the same was based on endeavouring to treat the patient through experimental means and such experiment would also require exorbitant funding while promising very few results. This would also be evident in the case of R (on the application of Rogers) v Swindon NHS Primary Care Trust and another. In this case the Primary Care Trust refused to provide funding for a drug which not approved by proper authorities to patients who were diagnosed with breast cancer unless exceptional circumstances could be established. This action was challenged through judicial review on the basis of its arbitrariness and also for violation of statutory provisions. However the court while reviewing the decision stated that it could not be decided purely on the basis of cost and it would thus require them to provide adequate reasons for not providing such treatment. The court however did not rule to enforce the Primary Care Trust to provide such treatment as the same was not approved by authorities. On the other hand it afforded the Primary Care Trust the opportunity to reformulate its policy to be able to better suit the needs of such patients. It would however be incorrect to state that such an action cannot be challenged through judicial review as though the ratio of the court is enunciated above the appellant was still victorious in court. This also led to the Primary Care Trust accepting its arbitrary actions publicly and stating that they would take costs into account in any further policies. However the woman who petitioned the judicial review was also able to secure such a victory as the Primary Care Trust had admitted to exceptional facts and circumstances being present in this case.
The statutory laws which would be required to assess the various provisions of providing equal treatment despite resource allocation would be Article 2 and 3 of the Human Rights Act, 1998. Article 2 provides for the right to life which would also thus ensure that patients would receive treatment they require to preserve such a right. In cases of the consideration of such denial of treatment as torture the same would also be prohibited under Article 3 of the Act. Article 8 would also be pertinent as a right a private and family life cannot be hindered by such executive action or decision. In order to completely fortify the position of the same Article 14 of the Act provides that all such acts would be devoid of discrimination form the freedoms prescribed under the same. Thus it is crucial to ensure that these laws are enforced keeping in mind equality.
Applying these principles and laws to the problem of denial of treatment due to resource allocation and the inability of judicial review to restore the balance of convenience and equities a clearer image of the gaps in such socio-economic systems emerges. It is evident that statutory principles as well as duties have been formulated and prescribed in order to ensure that a patient receives the required treatment devoid of resource allocation and more importantly denial of treatment in such cases does not happen. Irrespective of such systems being in place the governmental bodies have failed to provide for such situations. Moreover governmental bodies have engaged in the passing of arbitrary and unreasonable policies which would widen the gap and push such sections of society further away from such treatment. In the wake of such arbitrary and unreasonable action judicial review is the only recourse remaining in the hands of individuals affected by the same. However the courts have been reluctant to attach liability and have further been ineffective in curbing future instances of such situations. In the case of R v Cambridge Health Authority, ex p B the court stated that in a case where the life of such a young individual in concerned the lack of resources cannot be used as a defence. However, even in this case the court could not compel funding for the treatment despite ruling the same. The court’s reluctance to attach liability has also been sufficiently established in the case of R (on the application of Rogers) v Swindon NHS Primary Care Trust and another. In this case the court identified the arbitrary action but did not compel Primary Care Trust to fund the treatments but rather afforded them an opportunity to change their policies which may lead to further arbitrary action. This thus sufficiently establishes that judicial review has not been an effective mode of curbing arbitrary and unreasonable actions by government bodies and organizations.
As opined by Blane challenges to provision of treatment devoid of socio-economic background would have to take various realistic factors into consideration. These would include the set up cost of such facilities, the remuneration to such healthcare workers as well as the scale of availability of such services within a particular territorial jurisdiction. These however are not a part of the legal challenges that may present themselves while creating and/or formulating a healthcare plan for all citizens of a territorial jurisdiction. The legal challenges can only be through statute which is a codified law within such jurisdiction and precedents (which are developed by the Judiciary through judgments delivered and form a part of the common law system). In case of civil law this stand would be different as civil law jurisdictions are not bound by precedents. In terms of public law it was observed by Cohen that as far as statutory law is concerned the National Health Service Act, 2006 does not only provide for the creation of a system which would provide for such care but also imposes a duty on the secretary of state to impose and implement such a system. This can also be seen by glancing at Sections 1 and 3 of the Act. Thus it can be safely established that statutory law does not pose a challenge to provision of such healthcare and moreover endorses such a system. However, these statutory duties would have to be sufficiently observed for such a system to fall in place. This is where the challenges begin due to the non-observance of such statutory duties. The only recourse to the same, through judicial review, has been productive but has not been substantial enough to ensure such a system would fall in place. This is because the courts have been unable to attaché funding liabilities when such cases were brought before them. Thus the only major challenge to providing such healthcare is the reluctance of the court to enter into attributing financial liability in a way that would improve the system as a whole. Thus, as envisaged by Hervey it would be crucial to formulate a system that enforces such statutory duties instead of seeking recourse when such statutory duty is breached.
To conclude, the socio-economic status of individuals and their resulting standards of living would not be a valid reason to deny treatment. Medical services however continue to become more expensive and can lead to situations where a person is unable to opt for treatment due to a lack of resources. In this case the statutory provisions of law are not a challenge to the existence of a system where such allocation of medical services can be achieved. However, the provisions of the statute and the provisions of the resulting statutory duties would have to be observed by government bodies and institutions. A glance at action taken by such institutions would reveal that the same is veiled with a disregard for such provision of treatment to all individuals. Judicial review though attempting to interpret these laws has identified such actions it has not been able to enforce the same strictly. Thus, the key mode of ensuring that denial of treatment based on resource allocation is not prevalent within this jurisdiction would be a focus on ensuring statutory duties are observed rather than attempting to enforce the same through judicial review.