Case Law

Laws and the legal system

Statute law

• this is law which has been laid before Parliament and is enshrined in Acts, Orders, regulations

Common case law

• this is law that has arisen from the courts system

• the law of tort is part of the common law

• common law is not written down

• tort law involves civil wrongdoing - does not fit under criminal law

Healthcare law

• Criminal Law - concerned with offences against society at large, criminal law is run by the state - police would be involved and you would be tried by a court of law. You can be prosecuted, fined or imprisoned for an offence. An example is committing a dispensing error, or dispensing an illegal prescription.

• Civil law - generally a dispute between two private parties e.g. between consumer and supplier, or employer and employee

• Contract law - breaches of contract, negligence, nuisance trespass, defamation, looks to pay damages to the wronged part. Penalty is to pay a sanction which could be an apology or could be a fine. Could be because you refused to dispense a prescription and therefore you are in breach of your contract.

• Sanction

Criminal law healthcare professionals

• dispensing prescription that has not been signed is breaking the law

• could be a criminal sanction for that

Your professional responsibility

• balancing ethics, profession, patient and legal

The law of Tort

• law of tort is a wide ranging body of rights, obligations and remedies applied by the courts and civil proceedings.

• provides remedies and relief for those who have suffered a loss or a home following wrongdoing and neglectful acts of others.

• Damages tend to be financial in terms of compensation but it also might be an apology under a kind of reassurance that the processes would be changed and actions would be in safety and improved.

• in some cases it may be appropriate for an injunction - prevents them from doing something which could be working.

• recognises that everybody has certain rights, both personally and in terms of their property'

• protects these rights by requiring anyone who infringes there’s rights to pay damages (or some other remedy) to injured party

• examples of torts are defamation, negligence, nuisance, and trespass

• two possible outcomes for successful claimants

  • damages

  • injunctions

Civil law - negligence

• Clinical negligence claims are becoming more common

• new clinical roles for pharmacists = wider responsibilities'

• increased expectations of healthcare professionals

• increased penalties of “getting it wrong”

• if HCP commits a tort or breaks a contract they are liable for damage caused and may be sued in a court of law.

Proving negligence

• prove that a duty of care exists

• prove there was a breach of that duty of care.

• breach resulted in damage to the plaintiff

• without all 3 of these the case would fail - can’t sue the person they are making the claim against.

Duty of care

• Must show that the professional being sued owed a duty of care to the plaintiff

  • plaintiff is usually the injured person

• usually straightforward to establish e.g. if a patient comes under care of a HCP, a duty of care is owed to them

• however, some scenarios may not be as straight-forward - a legal test has been devised to check whether or not a duty of care exists.

• the existence of a duty of care is decided by the courts.

A duty of care exists when

• damage caused was reasonably foreseeable e.g. handing out drug that is dangerous with very severe side effects, or failing to check a prescription before it is handed out

• there was a sufficiently proximate relationship between the parties.

• it is just and reasonable to impose a duty of care

What is a proximate relationship

Somebody is proximate if they will be directly affected by your act to the extent that you ought to have them in your mind when performing the act ( you do not need to be physically in contract with them for them to be legally proximate to you )

Breach of the duty of care

• Centres on the standard of care given

• a breach of the duty of care is proven if the professional did not reach the standard of practice required by the law

• the legal test for standard of care is still influenced by two key pieces of law

  • the Bolam test (if the claim for negligence arises from an action or omission to act)

  • The Montgomery test (If the claim for negligence arises from a failure to secure adequate consent)