2. Introduction to Law
• Customary
• Criminal
• Common Law
Health related Law in Namibia
- Constitution of Namibia
- Public Health Act 1919
- International Health regulation 1974
- Foodstuff, cosmetics and disinfectants ordinance 1979
3. What is Administrative Law?
• Administrative law is the law that governs agency practice
• Public health is the classic government service, and it is a key administrative law
practice area.
• Understanding administrative law principles is critical to effective public health
practice
4. Public Health in the Colonies
Most of the population lived in poorly drained coastal areas
• People lived near rivers or ocean ports because goods traveled by water
5. Public Health in the Colonies cont…
Terrible epidemics
• There were mosquito borne illness - malaria and yellow fever,
waterborne diseases - cholera, typhoid, and the other diseases of the
pre-vaccination, pre-sanitation world, including smallpox. Yellow
fever nearly wiped out the Constitutional Convention. Philadelphia
lost 10% of the population in one summer.
• Average Life Expectancy was 25 years
6. Public Health in the Colonies cont…
• Public Health Law Actions in Colonial America
• Quarantines(isolations)
• Inspection of ships and sailors
• Nuisance abatement(reduction)
7. Modern Administrative and Public Health Law
• As government has evolved since the early constitutional
period, there has been a shift from general grants of
authority to more specific laws and regulations. However, the
foundation of administrative law remains the right of
agencies to do specific enforcement and make specific
regulations based on general grants of legal authority.
8. Scope of Administration Authority
• Administration Law in Namibia is governed at 3 levels:
a) Supreme Courts
b) High Courts
c) Lower (magistrate) court
Where as the court is suppose to be an independent body that is only subjected to
the constitution and the law.
10. Why Do the Courts Accept General Powers?
• Efficiency
It is beyond the ability of the legislature to spell out everything necessary to protect
the public health.
• Flexibility
It is impossible to anticipate or to know in advance every threat to the public
health. Laws that try to specify emergency actions with detailed provisions often
cause more problems in enforcement than laws with more general provisions.
11. Why Do the Courts Accept General Powers cont…?
• Speed
Public health threats demand quick action, which is impossible if you have to pass a
law to address a new threat.
• The Delegation Doctrine
An important historical reason for accepting general powers was the belief by many
courts that the legislature could not delegate the right to make rules to an
agency. While this has been rejected, it left early courts with the choice of
requiring a specific law by the legislature on everything, which was impossible, or
letting the agencies use general authority.
12. Due Process in Public Health
• When do you get a hearing?
Research shows that pre-action hearings can make it difficult for agencies to take
action and make those actions much more expensive.
13. Is there a Constitutional Right to a Hearing before the Health
Department Acts?
• There is no constitutional right to a due process hearing before the state acts
against a public health threat. If the defendants believe that the health
department acted improperly they could challenge the action later in court, and if
they win they could get compensated.
• However, in the public health context, if property threatens the public, it can be
destroyed without compensation. This can either been seen as a right to destroy
dangerous property, or a determination that dangerous property has no value.
14. Getting Specific - Why Make Regulations?
• Delegated legislative power
Public health agencies can make rules if they are authorized by the
legislature. While rulemaking is important in public health, many agencies, such as
the centre of disease control(CDC) have limited or no authority to make
rules. These agencies either do not do enforcement or enforcement statutes or
rules made by other agencies.
15. Getting Specific - Why Make Regulations cont…?
• Regulations give direction to regulated parties
While general powers are valuable to dealing with unexpected events, they give
little direction to people engaged in routine activities such as running
restaurants. By adopting standards such as food sanitation code, the health
department can give detailed guidance on how to prepare and serve food safely.
16. Getting Specific - Why Make Regulations?
• Regulations allow public participation
Regulations are usually published before they become effective and the public is
allowed to comment on them. In the federal system, there is no right to a hearing
on a rule unless specifically required by Congress. All comments must be made in
writing. Some states require that the agency have a hearing and allow oral
testimony on rules if requested by a certain number of persons. Public comment is
important for regulations that raise difficult public policy issues, such as whether
volunteer organizations such as churches have to meet the same sanitary
regulations as businesses. If an agency does not comply with the statutory
requirements for promulgating regulations, the court can suspend the regulation
until it has been properly promulgated.
17. Getting Specific - Why Make Regulations?
• Regulations harmonize practices between jurisdictions
While most public health enforcement is local or state based, businesses operate
across many jurisdictions and need consistent standards. It is also important that
public health standards reflect best practices. By adopting national standards,
health departments across the country assure best practices and make it easier for
national businesses to operate.
18. Getting Specific - Why Make Regulations?
• Limiting Issues if there is Judicial Review
Once a regulation has been properly issued, its validity cannot be challenged in
court. This allows an agency to limit the grounds for challenging an agency action.
For example, once the standards for food inspection are adopted, a restaurant
cannot litigate the proper temperature for keeping food cold or whether their
alternative dishwashing method is acceptable if these are specified in the
rules. Challenges to the rule must be made when the rule is promulgated, not in
later litigation challenging the enforcement of the rule. Challenges to the agency's
legal authority to make the rule or the constitutionality of the rule can be made at
anytime since the rule cannot be valid if the agency does not have the power to
issue it.
20. INTRODUCTION
Ethics is a system of moral principles, rules of conduct about a
particular class of human action or a particular group of people
21. INTRODUCTION….Contiue..
It is also that branch of philosophy dealing with value relating to human
conduc in respect to whether certain actions are right or wrong and
wether the motives and ends of such actions are good or bad
22. INTRODUCTION….Contiue..
Ethic is the philosphical study of the moral value of huamn conduct and
the rules that govern it.
Ethics have been particularly associated with specific groups in society
that are deemed to have societal responsibility
Professions are among such groups
23. INTRODUCTION….Contiue..
What certain is that profession hve a prestigious powerful and trusted
place in society and both the public and the law expect high standards
of conduct, especially where society allows slef regulation
24. INTRODUCTION….Contiue..
Health ethics have different common features in different countries
However each country adopts certain modifications according to
prevailling local culture, religious beliefs, social norms and standards of
public health practice
25. INTRODUCTION….Contiue..
In some countries the need for modification of code of ethics is based
on current beliefs, standards of public health practice and religious
concepts
27. INTRODUCTION….Contiue..
• Thus, health ethics may be defined as a code of behaviour accepted
voluntarily, within the profession as opposed to laws, regulations and
directives issued by official body or scientific study of morality.
• It teaches us how to judge accurately the moral goodness or badness
of human action.
28. MORALITY
Morality is the science concerned with the distinction between right
and wrong. A moral act is one that carried out with at least some
degree of knowledge and freedom,proceeding from man’s rational
nature
29. MORALITY….Continue..
A moral act (a human act which involves some principles of moral law),
which is in conformity with moral law, called good but if opposed to
moral law, it is called bad
30. MORALITY….Continue..
An act which is done with full knowledge and full freedom of choice is a
perfect moral act while an act in which both knowledge and freedom is
deficient is called an imperfect moral act.
31. MORALITY….Continue..
An act which may be either good or bad but carried out with good
intentions is reffered to a positive morla act.
On the contrary an act which entails omission such as an offence
committed by neglect of duty is called a negative moral act
33. METAETHICS
Refers to the philosphical enquiry and analysis of moral concepts,
judgements and arguments.
Metaethics is primarily concerned with analysing the meaning of
central ethical terms such as good, right, duty and obligation
34. METAETHICS…contiue
Metaethical enquiries consider the connection between human
conduct and morality between ethical beliefs and the facts of the real
world and the relationship between the various theoretical principles
of ethics and human conduct
35. NORMATIVE ETHICS
Normative ethics focuses on the evaluation of human character and
conduct.
Normative ethics is primarily concerned with providing a theoretical or
foundational basis for how people ought to behave.
36. DESCRIPTIVE ETHICS
Consists of factual descriptions of conduct or moral beliefs.
It often entails qualitative research studies into perception
37. THE DEVELOMENT OF PERSONAL AND
PROFESSIONAL VALUES
Values are learned and like other learned behaviour, take shape in early
life and are influenced by early caregivers and family.
As an individual grows and develops, fomal learning, peer experiences
and societal institutions shape values
38. THE DIFFERENCE BETWEEN ATTITDES, BELIEFS
AND VALUES
ATTITUDES: It is a feeling or disposition towards a person, an object or
an idea.
Belief: Represents personal confidence in the validity of some idea,
person or object
Values: Relates to modes of conduct and is expressed in terms of either
right or wrong
39. ETHICAL PRINCIPLES IN HEALTH CARE
Ethical principles are important elements in the formation of morla
judgements in professionl practice.
Ethical principles in health care provide guidance for thinking and
acting in order to determind what should or should not be done in
particular situation
40. FOUR ETHICAL PRINCIPLES IN HEALTH CARE
Principle of autonomy
Principle of Non maleficence
Principles of beneficence
Principle of justice
41. THE PRINCIPLES OF AUTONOMY
It expresses respect for the unconditional worth of an individual and
for individual thought and action.
Autonomy is considered to be the highest or most fundamental of all
principles , some people also include informed consent
42. THE PRINCIPLES OF NON MALEFICENCE AND
BENEFICENCE
Some philosopher divide the principles of beneficence into four general
obligations:
One ought not to inflict evil or harm
One ought to prevent evil or harm
One ought to remove evil or harm and
One ought to promote good
43. THE PRINCIPLES OF NON MALEFICENCE AND
BENEFICENCE
According to these principles decision in health care are based on how
to avoid harm to the patient and assessing how a patient can be helped
44. THE PRINCIPLE OF JUSTICE
This is the most unifying principle in health care . It includes principles
of resources allocation and fairness
45. CONFIDENTIALITY AND PRIVACY IN HEALTH
CARE
Privacy is the broader of the concepts of privacy and confidentiality and
it includes the right to be free from interference by others.
For confidentiality to be violated , one person discloses information
about another person and for privacy to be violated, one person gains
access to another person’s personal data
46. WAYS IN WHICH OBLIGATION OF PRIVACY CAN
BE INTERPRETED
Respecting the personal space of others
Restricting access to the information about the person
Maintaining decisional privacy, by respecting the right of a patient
47. ETHICAL PRACTICES REQUIRES
Current knowledge and skills
Knowing oneself
Ability to convey ethical moral concepts to clients
Willingness to become involved in the affaires of patients
Motivation to act ethically and morally
48. INFORMED CONSENT
It is an agreement to comply with a proposal to actually authorise
something through an act of informed or voluntary consent
49. ADVANTAGES OF INFORMED CONSENT
It enables practitioners to defend themselves after consent, after
consent has been given against a possible charge of assault and from a
moral point of view because it displays respect ,
51. Learning objectives
1. What is the purpose of tort law? What types of damages are
available in tort lawsuits?
2. What are two basic categories of torts?
3. What is defamation? Name two types of defamation.
52. LEARNING OBJECTIVES (CONT’D)
4. Identify the four elements of negligence.
5. What is meant by strict liability? In what
circumstances is strict liability applied?
53. Introduction
• Torts are wrongful actions. The word tort is French for “wrong.”
Through tort law, society tries to ensure that those who have suffered
injuries as a result of the wrongful conduct of others receive
compensation from the wrongdoers.
• Many of the lawsuits brought by or against business firms are based
on the tort laws.
54. The Basis of Tort Law
• The Purpose of Tort Law
• To provide remedies for acts that cause:
• Physical injury or interfere with physical security and freedom.
• Destruction or damage to property.
• Harm to intangible interests, such as personal privacy, family relations, reputation, and
dignity.
55. The basis of tort law
• Damages Available in Tort Actions
• Compensatory damages—intended to compensate or
reimburse plaintiffs for actual losses.
• Punitive damages—may also be awarded to punish the
wrongdoer and deter others.
• Tort Reform
• Types of reform
• Federal reform
• State reform
56. The Basis of Tort Law
• Classifications of Torts
• Intentional torts result from the intentional violation of
person or property (fault plus intent).
• Unintentional torts (torts involving negligence) result from
breach of a duty to act reasonably (fault without intent).
• Defenses
• Reasons why the plaintiff should not obtain damages.
57. Intentional Torts
against Persons
• Intentional torts against persons:
• Assault and battery
• False imprisonment
• Intentional infliction of emotional distress
• Defamation (libel or slander)
• Invasion of privacy
• Fraudulent misrepresentation
• Abusive or frivolous litigation
• Wrongful interference
58. Intentional Torts
against Persons
• Assault and Battery
• An assault is an unexcused and intentional act that causes another person to
fear immediate harm.
• A battery is an assault that results in physical contact.
• Example: Threatening someone with a gun is an assault. Firing the gun (if the
bullet hits the victim) is a battery.
59. Intentional Torts
against Persons
• False Imprisonment
• The intentional confinement or restraint of another person’s movement
without justification is false imprisonment.
• The person under restraint does not wish to be restrained.
• Undue force or unreasonable detention can lead to liability for a person or
business.
60. Intentional Torts
against Persons
• Intentional Infliction of Emotional Distress
• An extreme and outrageous act, intentionally committed, that results in
severe emotional distress to another.
• To be actionable (capable of serving as the ground for a lawsuit), the conduct
must be so extreme and outrageous that it exceeds the bounds of decency,
such as stalking accompanied by threats.
61. Intentional Torts
against Persons
• Defamation
• Defamation of character involves wrongfully hurting a person’s good
reputation.
• Libel—written or another permanent form, such as a digital recording
• Slander—oral
62. Intentional Torts
against Persons
• Invasion of Privacy
• Wrongful intrusion into a person’s private activities
• Publication of information that places a person in a false light
• Disclosure of private facts that an ordinary person would find objectionable
• Using a person’s name, picture, or other likeness for commercial purposes
without permission
63. Intentional Torts
against Persons
• Fraudulent Misrepresentation
• A false representation made by one party, through misstatement of facts or
through conduct.
• The intention is to deceive the other party to his or her detriment.
• Negligent misrepresentation occurs when a person supplies information
without having a reasonable basis for believing its truthfulness.
64. Intentional Torts
against Persons
• Abusive or Frivolous Litigation
• Malicious prosecution—When a person initiates a lawsuit out of malice and
without probable cause, and loses the suit
• Abuse of process—When a person uses a legal process against another
improperly or to accomplish a purpose for which it was not designed
65. Intentional Torts
against Persons
• Wrongful Interference
• The knowing, intentional interference by a third party between other parties
for the purpose of advancing the economic interests of the third party
• Business torts involving wrongful interference are generally divided into two
categories:
• A contractual relationship
• A business relationship
66. Intentional Torts
against Property
• Wrongful actions that interfere with individuals’ legally recognized
rights with regard to their land or personal property include:
• Trespass to land
• Trespass to personal property
• Conversion
• Disparagement of property
67. Intentional Torts
against Property
• Trespass to Land
• Trespass to land is the invasion of another’s real property without consent or
privilege.
• Examples: Walking or driving on someone else’s land without permission or
constructing a building so that part of it is on your neighbor’s property.
68. Intentional Torts
against Property
• Trespass to Personal Property
• Trespass to personal property is unlawfully damaging or interfering with the
owners’ rights to use, possess, or enjoy their personal property.
• Example: Kelly takes Ryan’s business law book as a practical joke and hides it
so that Ryan is unable to find it for several days before the final examination.
69. Intentional Torts
against Property
• Conversion
• Conversion is wrongfully taking or using the personal property of another
without permission.
• Conversion is the civil side of crimes related to theft, but it is not limited to
theft.
• Example: Mark takes Stan’s iPad and gives it to someone else, which is
personal trespass, but if he refuses to return it to Stan, it is conversion.
70. Intentional Torts
against Property
• Disparagement of Property
• Any economically injurious falsehood that is made about another’s product
or property.
• The term includes:
• Slander of quality—publication of false information about another’s product, alleging that it is not what its
seller claims
• Slander of title—publication casts doubt on another’s legal ownership of a property, and the property’s
owner suffers financial loss as a result
71. Negligence
• The tort of negligence occurs when someone suffers injury because
of another’s failure to live up to a required duty of care.
• Central to the tort of negligence is the concept of a duty of care, the principle
that people are free to act as they please so long as their actions do not
infringe on the interests of others.
72. Negligence
• When someone fails to comply with the duty to exercise reasonable
care, a potential tort may have been committed.
• The tortfeasor neither wishes to bring about the consequences of the
act nor believes that they will occur.
73. Negligence
• In order to succeed in a negligence action, the plaintiff must prove:
1. Duty
2. Breach
3. Causation
4. Damages
74. Negligence
• Defendants often assert that plaintiffs failed to prove the existence of
one or more of the required elements for negligence.
• Basic affirmative defenses are:
•Assumption of risk
•Superseding cause
•Contributory or comparative negligence
76. Negligence
• Res ipsa loquitur—plaintiff need not prove negligence on the part of
the defendant because “the facts speak for themselves”
• Negligence per se—when a person violates a statute or an ordinance
and the violation causes another to suffer the kind of injury that the
statute or ordinance was intended to prevent
77. Negligence
• Special negligence—prescribe duties and responsibilities in certain
circumstances
• Violation of these statutes will impose civil liability.
• Examples of special negligence statutes: dram shop acts and Good Samaritan
statutes are examples.
78. Strict Liability
• Under the doctrine of strict liability, a person may be held liable,
regardless of the degree of care exercised, for damages or injuries
caused by their product or activity.
79. Strict Liability
• Strict liability includes liability for harms caused by:
• Abnormally dangerous activities
• Exotic or domestic animals
• Defective products (product liability)
81. Two Types of Frauds Involved in Contracts
• In most jurisdictions, there are two types of frauds: fraud in the
execution of a contract and fraud in the inducement of a contract.
82. Fraud in the Execution of a Contract
• Fraud in the execution of a contract, sometimes referred to as “fraud
in the factum,” occurs when one party is misled into entering into a
contract with another.
83. Fraud in the Inducement
• Fraud in the inducement occurs when a party agrees to enter into a
contract, understands the rights and responsibilities of the
contractual agreement, but has been induced into the agreement by
false information provided prior to agreement.
84. Fraud Creates a Voidable Contract
• When fraud occurs during the creation of a contract, the contract is
not automatically void, at least in the vast majority of jurisdictions.
85. Waiving the Right to Allege Fraud
• Some jurisdictions follow a rule stating that if the party could have
discovered the fraud through reasonable means, i.e., reading the
contract, and failed to do so, then the defense of fraud is no longer
available.
87. Proving Fraud
• In most jurisdictions, a party alleging fraud must
prove the following:
a) That the other party made a
representation.
b) That this representation was about a
material fact to the transaction.
88. c) That this representation was false.
d) That the party made this false representation with the intent of
misleading the plaintiff into relying on the representation.
89. e) That the plaintiff did, in fact, rely on the representation.
f) That the plaintiff incurred damages from relying on this false
representation.
90. Clear and Convincing Evidence Required to
Prove Fraud
• Most jurisdictions require that a plaintiff proves an
allegation of fraud with clear and convincing
evidence.
91. • Clear and convincing evidence: Proof that a particular set of
allegations is likely to be true; it is a higher level of proof than
preponderance of the evidence.
92. Fraud Involves Material Facts
• An allegation of fraud is limited to dishonesty concerning material
facts
93. Sales Statements Are Usually Not Considered
to be Material Facts
• Sales exaggerations or “puffing,” is considered to
be harmless since most people do not put much
faith in such statements in the first place
94. Opinions Are Usually Not Considered to be
Material Facts
• A person’s opinion about a particular situation
usually does not rise to the level of a material fact.
95. Duress, coercion and undue influence
• It is one of the basic principles of contract law that persons cannot
have contracts forced upon them.
96. Duress
• Duress is the application of unlawful force, or the threat of force, that
causes a person to do something that he or she would not otherwise
have done.
97. Exercising a Legal Right does not Create a
Claim of Duress
• It is not duress to exercise a legal option.
98. Coercion
• Coercion is a mental threat, compulsion, or force making a person act
against free will.
99. Undue Influence
• A defense of undue influence often comes about in situations where
one person enjoys a position of trust with the plaintiff and then uses
that position to deceive the plaintiff into entering a contract.
102. Actions that Qualify as Ratification
• A person ratifies a contract through action.
• The only way to successfully ratify a voidable contract is to wait until
the legal impediment that made it voidable disappears.
103. Later Agreement
• A party can ratify a voidable contract by expressly affirming the
contract, even though it is lacking some specific element.
105. • A court may find that a party has ratified a contract even without a
positive statement, where the party continues to receive benefit from
the contract, or continues to act as though the contract is perfectly
valid.
106. Ratification by Delay
• The courts may find that a party ratified a contract simply by its failing
to challenge it within a reasonable period of time.
107. The Doctrine of Laches
• The principle of laches, sometimes known as the Doctrine of Laches,
is simple: when a party has a right and does not assert it, he or she
will lose the right.
108. Ratification and Duress
• An agreement obtained under duress may also be ratified at some
later point in time.
• But only when the conditions that created the duress are removed.
