Duty of Care
In English law an individual is owed a duty of care by another, to ensure that they do not suffer unreasonable harm or loss. This definition of duty of care known today came from Lord Atkin and the 'Neighbour Principle' that came from the judgement on the Donoghue vs. Stevenson case in 1932. The Donoghue verses Stevenson is the case of Mrs Donoghue claiming damages from gastroenteritis after drinking a bottle of ginger beer and finding a decomposing snail in it. She was claiming damages against Mr Stevenson the manufactures of the ginger beer. When this case first came to court neither Scottish law nor British common law saw duty of care in regards to someone remotely connected. Lord Atkins changed things by saying everyone has a duty of care to their neighbour here is a quote of what the legal definition of a neighbour should be. “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question “Who is my neighbour?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” (Lord Atkins, 1932) When this duty of care is not acted upon this s called negligence.
Negligence
Negligence is a tort which establishes legal liability for careless actions or inaction which causes injury. Therefore negligence is not concerned with the action or inaction, but with the manner in which the action or inaction is carried out. Negligent conduct is that which falls below an acceptable standard, this standard has been established in order to protect others from an unreasonable risk of harm. Not every type of carelessness is defined as legal negligence. There are four elements that need to be proved for an action or inaction to be defined as legal negligence this are; duty, breach, causation and damage. The “ABC” rule has to be has to be met before negligence can be. A is there has to be a duty of care between the health care practitioner and the patient. B is that the actions of the health care practitioner fell short of the duty of care identified in A. And C is that this action leads to damages occurring. Negligence is a part of Tort law.
Tort Law
Tort law exists to protect rights; it defines rights and obligations when an individual commits a wrong or injury against another person. There are six classifications of tort law these are; “Wrongs to the person, wrongs to reputation, wrongs to property, wrongs to persons or property, wrongs of interference, and abuse of legal procedure.” (Curzon, 2002) The law uses one standard to judge all people not on the individual.
Trespass
Trespass is an area of tort law broadly divided into three groups; trespass to the person, trespass to chattels and trespass to land. Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person’s lawful possession of the chattel. Trespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without lawful excuse. (Fleming, 1998)
Trespass to the person
Trespass to the person may be by assault, battery, or false imprisonment. Trespass by assault is an act which intentionally causes another person to apprehend the infliction of immediate, unlawful, force on this person. Trespass by battery is the actual intentional infliction of unlawful force on another person. Trespass by false imprisonment is the unlawful imposition of constraint upon another’s freedom of movement from a particular place. Trespass to the person in a medical setting could be a doctor or nurse carrying out a procedure without the consent of the patient; however this is not always the case. In some cases doctors can perform emergency procedures to save a patient’s life without their consent this is sometimes because the patient is too ill to consent or there is a complication while another procedure is taking place. An example of trespass to the body in a medical setting is the case of Bartley v Studd. This case is about John Studd removing Mrs Bartley’s ovaries while doing a hysterectomy without her consent. (Garner, 1997)
Consent
Consent is “compliance with or deliberate approval of a course of action.” (Curzon, 2002) Consent within health settings is an important thing, without the consent of the patient no treatment can go ahead. The age of medical consent is 16. However according to The Children Act children have to have a say in their treatment, this can lead to difficulty in deciding who this is shown gives final consent this is shown through the case of Hannah Jones (2008). Hannah Jones at the time of the case was 13 years old who is terminally ill and needed a heart however she refused even though it would kill her because she was fed up of medical treatment and wanted to die at home with her family who agreed with her decision, however the hospital took them to court to get her removed from her parents so they could do the transplant. This went to court and Hannah won the right to refuse to consent to the transplant. (Lewis, 2008)
How Legislation and Common Law are linked with regards to Professional Practice
Legislation, also known as Acts of Parliament or Statutes, is the commonest source of new law in the United Kingdom and is of great relevance to health, care & social workers. There is another form of law known as Case Law -essentially 'judge-made law'. This is often referred to as Common law, developed by individual judicial decisions. Where a legal issue has been decided by a judge or judges in a superior court, lower courts are bound to follow this decision in subsequent cases. In other words when a senior judge has made a decision about a case, other judges abide by this decision (called a precedent). Most law was made this way up until the 17th century but more recent legislation is nearly all created by Acts of Parliament, referred to as Primary Legislation. The role of the judges is still important though, as they play a part in law-making by interpreting Acts of Parliament and their rulings may become law, as in the case of Regulations. Both the Acts and their relevant Regulations are law. Other documents, sometimes called Guidance, Codes, Circulars etc. are not law precisely, but they do tell us what the government or judges consider to be good practice (and therefore can be said to have ‘force of law’..
The idea of interpretation is useful for social workers, nurses and other care workers, because they are be required to interpret aspects of Acts of Parliament also - for example when the Children Act says that the ‘welfare of the child is paramount’, what does this mean in terms of what professionals actually do in day-to-day practice? Acts are sometimes extremely large documents with many different sections and subsections, dealing with all aspects of a particular subject. Not all sections will be pertinent to particular situations, so having identified a relevant Act, professionals will then firstly need to find the section or sections that tell them what responsibilities and obligations they have in their professional roles (i.e. what the Act says they must do, whether they want to or not). Secondly they need to ascertain what powers they have (i.e. what they may do if, in their professional capacity they judge it to be necessary). These two aspects of social work and health care law - powers and responsibilities - need to be balanced by the concept of rights, a third important aspect of the law for professionals. This can be the rights of the client (and relatives etc) or the rights of the worker (which at times may be in conflict).
In everyday practice professionals may not always refer to legislation directly - agencies that employ health and care workers, such as the NHS and Social Services Departments, will usually have produced documents that detail policy and procedure, designed to help them act in accordance with the law.
Regulations, guidance and procedures along with various codes of practice produced by the relevant professional bodies: the Nursing & Midwifery Council (NMC) for Nurses and Midwifes and the British Association of Social Workers (BASW) for Social Workers) recommend what is considered to be good practice on a day-to-day basis for professionals. In other words what is considered to be the professional’s ‘duty of care’, in given work-related situations. This means in effect that the professional has a defence against claims of malpractice or negligence if s/he has followed the authorised guidance and regulations. However the converse also applies. If a professional has not followed accepted guidance or procedure and a client or patient has suffered harm as a result of the professional’s actions, the professional may be personally found guilty of negligence.
Word Count
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Bibliography
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