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Does Your Doctor Know Best?

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Before I start, I would like to illustrate a scenario. Imagine you are playing a friendly game of football in the park with your friends. After dribbling past three players with a perfect sight on goal, a diabolical foul is committed resulting in the bone in you leg shattering into multiple different pieces. You are rushed into hospital, where an operation needs to be performed in order to correctly position the fragmented bone. During the operation, there was a medical error and consequently, you are told that you will never be able to walk again. What are your rights to compensation?

Clinical negligence, formerly known as medical negligence, is the process by which a patient takes his or her medical attendants to a civil court for compensation. In order for negligence to be proven a Claimant must show that the doctor owed a duty of care to the patient, that the doctor was negligent in his or her management, and also that the patient suffered harm as a result. The Claimant has to succeed on both liability and causation to obtain compensation:

Liability to show that the doctor must have been found to have acted in a manner that no other similar professional would have done.

Causation that harm has resulted which would not otherwise have occurred (on the balance of probability, i.e. the action of the doctor was more than 50% likely to have caused the harm).

The Claimant’s loss is then assessed in terms of quantum (loss of current and future earnings, reduced quality of life, mental anguish) and the recompense is money – nothing more and nothing less.

However, the main question that arises, is how do you test liability? Who decides whether there was liability or not? Bolam v Friern Hospital Management Committee (1957) is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals. The Bolam test states that a doctor is not guilty of negligence if he or she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in that particular art. The implications of this for those in primary care are that the standard against which one is judged is that of one’s own peers – not that of the wisest and most prudent doctor who exists and not that of a hospital consultant who may carelessly venture opinion as to the management in general practice. By the same principle, the persons who give evidence to the Court about the standards in general practice can only be general practitioners who were practising at the time of the case.

In the case of Gregg vs Scott brought to the House of Lords in 2002, the claimant found a lump under his arm. He consulted his doctor who negligently diagnosed it as innocuous when in fact it was cancerous. This lead to a nine month delay in the claimant receiving treatment. During this period the claimant’s condition deteriorated and the cancer spread, reducing his chances of survival from 42% to 25%. The claimant brought an action based on his loss of a chance of a disease free survival.

Lord Nicholls gave a powerful dissent: “This is the type of case under consideration. A patient is suffering from cancer. His prospects are uncertain. He has a 42% chance of recovery. Unfortunately his doctor negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for months. As a result the patient’s prospects of recovery become nil or almost nil. Has the patient a claim for damages against the doctor? No, the House was told. The patient could recover damages if his initial prospects of recovery had been more than 50%. But because they were less than 50% he can recover nothing.”

Furthermore, there is also a limitation of time that a case must be brought up. A case must be brought within three years of knowledge of harm suffered, meaning that if a patient thinks they have received negligent treatment today, they have 36 months in which to file a claim. Exceptions to this rule are that you were a child, under the age of 18, or mental ill at the time of injury.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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