FULL Medical Law Summary of Semester 1, Sintesi del corso di Diritto

Scarica FULL Medical Law Summary of Semester 1 e più Sintesi del corso in PDF di Diritto solo su Docsity! 6FFLK016 Medical Law, Revision Seminar 2016 Please prepare some ideas on answering the below questions for discussion in class. Exam preparation: In the exam prepare each topic for both essay and problem question. Do not forget the Human Rights Act => problem question => Come down on one side. Essay => brief intro. Try to have links between paragraphs. Where you can => mention commentator’s name: “As Lewis notes..” this links in to what you are saying. INTRODUCTION => in the first sentence answer the question straight away. Be accurate of what the law actually says -> use the exact wording from legislation. Tell actually what has been said in Gillick. Write short sharp sentences!!! PQ: Battery-assault / if doctor removes something from the baby w/o consent parents will sue for medical negligence. PROBLEM QUESTIONS: 1. Anna suffers from paranoid schizophrenia and anorexia. She is sectioned under s.3 of the Mental Health Act 1983 in Cherryville Hospital. She usually agrees to eat very small portions of food and also has been taking anti-psychotic medication, which has been prescribed for her delusions. One day, Anna begins to threaten staff and says she will retaliate physically if they come near her or try to feed her. She refuses food and refuses her anti-psychotic medication. It is discovered that Anna has not been taking food or her anti-psychotic medication for several days and this has caused her current psychotic break. The doctors at Cherryville Hospital wish to restrain and sedate her in order to give her food via nasogastric tube and to ensure she takes her anti-psychotic medication. Advise Anna’s doctors. Anna: schizophrenia and anorexia – sectioned under S3 of MHA: involuntary admission for treatment – refusing food and anti-psychotic medication. 1) Schizophrenia: MHA 1983 as amended by the 2007 act => only those suffering from a mental disorder can be detained, where mental disorder means “any disorder or disability of the mind” (s1(2) MHA 1983 as amended by 2007). Under S3 1983, as amended: admission for patient where: (i) Suffering from a mental disorder making it appropriate for her to receive treatment (ii) Necessary for health and safety of the patient (iii) Appropriate medical treatment is available. Treatability requirement = if treatment is not available/don’t improve patient’s condition => not possible to admit patient and detain him. Additional info needed, but it seems that Anna could be lawfully detained in hospital. Treatment for patients with mental disorder: probably not following under S57-58 since there is no need to special treatment & assuming medication is not given to her after 3 months. Treatment under S63: medical treatment for mental disorder can be provided without consent. And under S145(4): medical treatment – purpose is to alleviate mental disorder/ symptons/manifestation. In this case: treatment for schizophrenia is straightforward => anti-psychotic medication is needed to prevent the manifestation of schizophrenia. Doctor can lawfully give her medication, even if this requires some force to be applied: R v Broadmoor Special Hospital Authority “detain and treat without consent is, by implication, accompanied by “the necessary incidents of control”. What about anorexia? Anorexia is capable of being a mental disorder under the 1983 MHA as amended (B v Croydon – Riverside Health NHS Trust v Fox) => if patient is self-harming (i.e. not eating) then she can be detained. But can treatment be given under S63 i.e. without her consent? She is refusing treatment => capacity. Say what the capacity test is (S2 presumption, test is in S3 MCA): (i) disturbance of mind/brain (ii) understand, weight, communicate. She’s having a psychotic break => medical evidence that she’s having dilutions = hard to understand/use/weight. No capacity => best interests under S4 MCA. But she’s sectioned under MHA => S58 + Re Jackson for psychotic break. Even if she did have capacity, you could give her food under S63 if food is treatment for mental disorder. B v Croydon food is treatment for a mental disorder (and Brady case as well). If she was not sectioned and she was found to have capacity => no food could be given, no treatment can be imposed without her consent. Look at page 353 in Jackson. Discuss the legal issues arising. S8(1) Family Law Reform Act 1969 – Re W – Re P ESSAY QUESTIONS: 3. To what extent does do you think English law now respects and protects the autonomy of patients in making decisions about medical treatment, since the decision in Montgomery v Lanarkshire Health Board 2015? Talk about the development of the law: from a doctor-centred approach to a patient-centred approach. Name the older cases and the critique, but the main point of the essay needs to be Montgomery. English law now in respect of autonomy in medical negligence. Then state the decision of Montgomery very clear: facts and ratio in brief. This needs to be in there, para 87 of the judgment: Risk is material if reasonable person in the patient position be likely to attach significance to it or if doctor is aware/should be aware that that patient will be likely to attach significance to it. State also the side aspects of the decision: inquisitive patient – therapeutic privilege – not about percentages – adequacy of the warning (i.e. ensuring that they understand). Also write Commentary on Montogmery => this tells you that Montgomery is great but there are still problems with the test. You can also add a bit about other jurisdictions (Ireland and Australia). 4. What impact has the Human Rights Act 1998 had on Medical Law? Discuss, with reference to refusals of treatment in relation to both children and adults. First of all you need to say what the HR and what it does. ECHR incorporated y the HRA 1998. Refusals of Children (Paractemaol case and AXON case – mother did not want daughter to get abortion without knowledge – parental authority under art 8 diminishes when the child grows up) /By adults for children: Paracetamole case (art 8 but art 2 outweigh this -> but this is not the same approach for adults) – parents who refuse for children (art 8 for parents and art 2 for life / also look for art 8(2): limitation to private and family life for health things / Re J => art 9: father argued freedom of religion -> 9(2) limiting this right) – Re C (circumcision). Interference is lawful only if necessary in a democratic society => proportionality and margin of appreciation. Refusal for adults: Mental Health Act (no consent even if they have capacity under S63 – use of force) – White Valley and the “normal” adults. FOR EVERY TOPIC YOU DO => CONSIDER HR ACT.