Optometry and Law

Only English Legal System - not Scottish or Welsh

What are the sources of law?

• Acts of Parliament or Statues

• Common (case) law

• European community law - BREXIT means shifts and changes but some laws may still be adopted by the UK

How does acts of Parliament work?

• Starts as Bills

• Bills go through a series of different readings within the Houses of Parliament where MPs debate the proposals of the government, proposed amendments and maybe make changes as a result

• Goes forward to the House of Lords - not able to force changes but provide comment and suggestions of alternations and changes

• Bill is then passed back to the Houses of Parliament and relegated

• Once it is passed, it attains Royal Assent from the monarch before being Law

What are secondary legislation principles?

• Set up by Acts of Parliament

• A particular Act might give powers to a minister e.g. State of Health

• Allows small changes to be made within a particular area

What are statutory instruments?

• Regulatory healthcare bodies are set up by the statutes

• Gives these bodies a certain level of autonomy to set the rules of what they do

• E.g. GOC

What is common/case law?

• Law that is made by judges and is based around precedence

• If a situation arises in court, the judge will make a decision and if it is bought up again in court, it is reasonable to assume that how it was dealt with before would be the basis on which decision is made on future occasions

  • However each case is different and things like intention can mean a different decision is necessary

• Bodies of decisions around a particular area builds up some defining principles about what should go on

  • Not embodied in legislation but allows us to predict what the appropriate thing to do would be

What are the types of cases?

• Criminal

• Civil

  • Regulatory

What are criminal cases?

• Concerned with legal rules which attract punishment by the state

• Prosecution is on behalf of the Crown (Crown Prosecution Service)

• These involve serious cases: indictment e.g. murder, rape, drink drinking

• Case is made by the state and they must prove the plaintiff did what is being stated

• The level of proof required is BEYOND REASONABLE DOUBT

• May or may not involve a jury

What are civil cases?

• Claims usually about contracts, wrongdoings or negligence

• Legislation commenced by plaintiff (a person, company, public authority) against defendant

• The court it is attributed to will be dependent on the financial value of the case

• The requirement is on the individual who is being wronged to prove that

  • Plaintiff must prove the liability of the defendant

• Case to be made on the BALANCE OF PROBABILITIES

  • More likely than not that this happened (50.1%)

What are regulatory cases?

• Concerns as Optometrist’s Fitness to Practice

• Not about financial penalty for wrong doing (civil litigation)

• The regulator (GOC) must prove their case

• Case to be made on the BALANCE OF PROBABILITIES

What is the process for criminal cases?

1. Start at the magistrate’s court

   • 95% of cases concluded

   • Consists of 3 magistrate’s who are lay members of the public who have specialised training and been given advice by legal advisors on the laws involved and then a decision is made

2. Everyone has the opportunity to take things to a jury so they then can decide/if it is a serious case and it then proceeds to Crown Court

   • Jury trial of 12 people will hear the prosecution and defence

3. If it is a very serious case (e.g. murder) it goes straight to Crown Court

   • No magistrate’s court

What are the different civil court elements?

1. County court

   • Small claims track: less than £10k

   • Fast track: £10k-25k

   • Multi track: £25k+

2. High Court (substantial civil claims (over £25k)

   • King’s bench - contract and tort (wrongdoings e.g. negligence) claims

   • Chancery - disputes involving equity masters e.g. mortgages, trusts, copyrights and patents

   • Family - matrimonial related disputes and cases relating to children

What is the Honey Rose case?

• An optometrist missed papilloedema in a child and was charged with a criminal case

What is the purpose of the Supreme Court?

• Not necessarily involved with individual cases but the individual principles involved

• Deals with precedence and interpretation of law

What is a contract?

A legally binding agreement between two or more parties

What are the elements of a contract?

1. Offer and acceptance

2. Intention to create legal relations

3. Consideration

4. Capacity

5. Consent

What needs to happen for a contract to be binding?

1. Offer

2. Acceptance

3. Consideration

What is consideration?

• ‘Something of value given in exchange for something else of value, usually in the context of a contract’

• Each side must promise to give or do something

• It must be sufficient but does not have to be adequate

  • Doesn’t need to be of equal value

What is the difference between a mere promise and consideration?

• Considerations involve both sides giving something

• A mere promise involves a consideration from only one side

• E.g. keeping spectacles aside

What is acceptance?

• Final and unqualified acceptance of the terms of an offer

• For a binding contract the acceptance must exactly match the offer

• Silence does not amount of acceptance - must be through an act or communication

• If the offeree changes any of the terms, this is a counter offer

  • Can include changing the date

What is the legal definition of offer?

• Expression of willingness to contract on certain terms, made with the intention that it shall become binding on the offeror as soon as it is accepted by the person whom it is addressed to

• Can be addressed to a single person, a group or to the world at large

  • E.e.g Carlill vs Carbolic Smoke Ball Co (for influenza in 1893)

What is the invitation to treat?

• An expression of willingness to negotiate on a particular service or product they are offering and maybe with the view of creating a contract

• Is when a company is inviting offers which they can accept or reject therefore they are not legally obligated to sell

• E.g. auctions, display of goods, advertisements, statements of price, tenders

• A company putting a price on an item is ‘inviting you to treat’, you then make an offer by going to the till to pay and the offer is accepted by the company once payment is taken

  • Acceptance and considerations from both sides, therefore a contract is formed

What is presumed to be legally binding and what is presumed not to be?

• Business agreements are presumed to be legally binding

• Social and family arrangements are presumed not to be unless it is stated that this is the intention or written contract is made

Which groups of people do not have the capacity to enter into a contract

• Minors

  • Nash vs Inman (1908) shows that it is possible if it is something that a minor needs and it is obvious to the person providing that they do need it

• People of unsound mind

• Drunkards

When is consent not valid and therefor a contract not formed?

• Doctrine of duress

  • ‘Coercion of the will’ to obtain the consent to the contract

  • E.g. threats

• Doctrine of undue influence

  • When improper pressure causes a person/party to consent

  • E.g. may come from a guardian, trustee, solicitor, clinch