Care In The Medical Field

The two main legal questions in this case were as follows: (a) whether the medical casualty officer was negligent; and (b) whether the negligence of the medical casualty officer caused the death of the deceased. The first question is a question of law, and the second question is a question of fact. The first question is to be decided on the basis of law of negligence and the principles of duty of care, which were defined in the seminal case of Donohue v Stevenson. The first question also includes the legal principle of standard of care, which in medical cases refers to a specific standard of care. This is a legal standard, as per which the doctor can be held liable for negligence if the practices are not as per the practices considered proper by a responsible body of medical men skilled in that particular area of practice. It is important to separate questions of fact from law when reading cases, because precedent is based on the decisions with respect to questions of law. The questions of fact can be decided through evidence or lack of evidence by reference to certain standard of proof. Question of law can be decided by reference to relevant legal principles.

In this judgment, Nield J referred to Lord Denning’s observation in Cassidy v Ministry of Defence; but Nield J did not use that information for this case, rather he distinguished Cassidy. After referring to Lord Denning’s observation, Nield J goes on to state that “here the problem is different and no authority bearing directly upon it has been cited to me.” This shows that although Nield J acknowledges the observation of Lord Denning, he does not believe that the observation has a bearing on the present case because the problems or issues involved in this case are different. This is an indication that Nield J did not use this information in the case; rather, he distinguished it and explained the reasons why Lord Denning’s observation was not applicable to this case.

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Although Nield J referred to the extract from Winfield on Torts, he is not bound to follow the information he read here, because this academic work is not a binding precedent for Nield J to follow. In England, judicial precedent is followed under the doctrine of stare decisis, as per judges possess de facto law-making powers. Precedent is unique to common law, in that it creates an expectation that other than the changes to the law made by the Parliament, the law would remain static and stable. The applicability of a binding precedent is related to the hierarchy of courts. In other words, a court is bound by a precedent of a court that is higher to it in hierarchy. The principle of stare decisis or precedent is based on the need to ensure that the case should be treated in the same way as previous cases and the law can only change as per the hierarchy of courts. In other words, a higher court can change the law decided by the lower court, but the lower court has to follow the law made by the higher court. This is a binding precedent, that is, a previous authority decided by a superior court, which is binding in subsequent cases decided by the lower courts. This ensures that the law does not change or become unstable.

The standard of care in civil and criminal cases is different from each other. In criminal cases, the standard of proof is described as "beyond reasonable doubt", this standard being applicable to the prosecutor. The meaning of this standard of proof is such that the finder of the fact must be convinced that the defendant is guilty. The burden of proof is much greater than in civil cases. In civil cases, the standard of proof is described as 'the balance of probabilities”. This means that the burden of proof is satisfied when the claimant presents the preponderance of evidence. Balance of probabilities means that the according to the evidence it is more likely than not that the allegations of the claimant are true. Thus, unlike criminal cases, standard of proof in civil cases is lower.

There is a difference between standard of care in criminal and civil cases because there are different social costs that are resultant of the errors in these cases. The social costs of errors in judgments of criminal cases are higher than social costs in civil cases. This is not to say that the law does not consider the allegations made in civil cases to be any less serious than the ones in criminal cases.

Identify which court this case was heard in. What would have happened if Mrs Barnett wanted to appeal the outcome (in accordance with today’s rules)?

This case was heard in the Queen’s Bench of the High Court. If Mrs Barnett would have wanted to appeal the outcome of the decision as per today’s rules, the appeal would be made to the Civil Division of the Court of Appeal. The appeal to Court of Appeal Civil Division is made as per the provisions of Civil Procedure Rules, Part 52, which deals with appeals. As per this, permission to appeal is needed and without this permission, appeal cannot be made to the Court of Appeal. The Court of Appeal can decide whether to give permission or not without an oral hearing. However, in case the judge determines that an oral hearing is needed to come to a fair assessment of whether permission is to be granted, then such oral hearing may be granted by the court within 14 days. Generally, permission to appeal is granted only where the court is of the opinion that the appeal would have a real prospect of success; or there is a compelling reason for the appeal to be heard.

The European Convention on Human Rights (ECHR) is the principal European Union (EU) treaty on human rights. It creates binding obligations for Member States of the EU. The ECHR rights are incorporated in English law through the Human Rights Act 1998.

A brief summary of the facts of the case are that the two Wainwrights, mother and son, had visited the Leeds prison to meet an incarcerated son/brother who was suspected of drug abuse in the prison. Due to prison policy, of which they had no prior intimation, they were required to undergo a strip search for which the mother was stripped naked and the son (who had educational and physical difficulties) was also forced to undergo a strip search. ECHR Article 8 rights are engaged as this provision protects the right to privacy of an individual as well as the right to family life, and also provides the reasonable limitations on the exercise of this right.

ECHR, Article 8 provides the right to respect for his private life and family life; and further provides that this right cannot be interfered with by a public authority except when such interference is accordance with the law and is necessary for national security, public safety, economic wellbeing, prevention of disorder or crime, protection of health or morals, or for the protection of the rights and freedoms of others. When the case came before the European Court of Human Rights (ECtHR), the principal issue before the court was whether the strip search of the Wainwrights amounted to breach of Article 8 rights under the ECHR.

The first argument for the Wainwrights was that Article 8 of ECHR was engaged because the prison regime regarding visitors impacted the rights of family members visiting the prisoners and impacted the right to family links.

Regarding consent given to strip search, the Wainwrights argued that as this was a condition for visiting their incarcerated family member, they had no choice but to consent in order to visit; therefore, this consent was not a real consent that provided a waiver to right to privacy.

The third argument of the Wainwrights was that the Prison Rules failed to provide clear directions on how people could be explained the justification of the search and the procedure to be followed for the search; therefore, the search was not proportionate as precision was missing in the Prison Rules. Moreover, it was argued that considering the nature of invasion involved in the strip search, the margin of appreciation was not applicable to justify the conduct of the prison authorities.

Article 8 of the ECHR provides the grounds under which Article 8 right to privacy can be limited or restricted by the state or its authorities. These grounds include the grounds of prevention of disorder or crime and protection of health or morals. Therefore, the first argument on behalf of Government is that it was necessary in the interest of prevention of disorder and crime and protection of health that the strip search be conducted as there was reasonable suspicion that the incarcerated son/brother was receiving drugs in the prison.

The second argument on behalf of the government is that the Wainwrights never objected to being searched and they did not (not even once) raise the objection that they did not want to be searched.

The third argument on behalf of the government is that the searches (barring that which constituted battery) were proportionate and came within the purview of margin of discretion because the state had to provide a balance between the need to prevent crime and protect the health of prisoners on one hand, and the rights of the visitors on the other. Considering the serious drug problems in the prison, and the fact that there was some evidence of visitors bringing in drugs, it was necessary to make provisions regarding searches of the visitors.

The ECtHR decided in this case that Article 8 of the Convention had been breached by the UK government. The Court took the view that while, the UK government is legitimate in its concern for the endemic drug problem in its prisons, wherein searching of visitors could be a legitimate preventive measure; nevertheless, the strip search procedure applied by the prison authorities was highly invasive and debasing for the visitors to go through unless precise measures were followed to maintain their dignity. The Court noted that in this particular case, the prison authorities had failed to comply with own regulations, therefore, the process was not precise. One point particularly noted by the Court was that the prison authorities had failed to provide a copy of form to visitors setting out the search procedure. Moreover, the prison authorities also failed to follow the requirement that a person undergoing search should not be more than half-naked at any time. Finally, the Court considered that the searches were not proportionate to the legitimate aim in the manner of executing these.

I agree with the decision of the ECtHR because the manner in which the strip search was carried out did not comply with the procedural requirements. The reasons given by the court are indicative of the correct position on this. If the prison authorities had a precise procedure, and they had followed this procedure strictly then the court may have come to a different conclusion on this issue. However, the prison authorities did not do so, and their manner of strip search was therefore breach of Article 8. I agree that searches can be necessary in light of the growing drug problem; however, these searches should be proportionate to the legitimate aim. Otherwise these searches are in breach of rights of visitors under Article 8 of the ECHR.

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List of Cases

  • Barnett v Chelsea and Kensington Hospital Management Committee, 1969] 1 QB 428.
  • Bolam v Friern Hospital Management Committee, [1957] 2 AER.
  • Cassidy v Ministry of Health [1951] 2 KB 343.
  • Donohue v Stevenson, [1932] UKHL 100.
  • Wainwright v Home Office [2003] UKHL 53.
  • Gillespie A and Weare S, The English Legal System (Oxford University Press 2017). Carper D, McKinsey J and West B, Understanding the Law (Cengage 2017).

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