This document provides an introduction to healthcare law in the UK. It discusses several key areas of law including criminal law, civil law, sources of law such as statutes and common law. It also covers legal issues that commonly arise in healthcare such as negligence, consent, data protection, and treatment disputes. The document aims to give healthcare professionals an overview of the legal issues and responsibilities they should be aware of in their practice.

1. Introduction to Law in
Healthcare
Ed Horowicz

2. Objectives
Introduction to the English legal system.
Focus on healthcare law.
Overview of the scope of the law in healthcare.
Introduction to legal issues in healthcare.

3. How Does The Law Work?
 Why do we have law?
‘At his best, man is the noblest of all animals; separated
from law and justice he is the worst.’ Aristotle.
 Law v morality- where does legal thinking begin?
 Judeo-Christian values but consider the application of
Military law, Sharia law and Canon Law

4. Criminal Law
 Criminal law serves as a mechanism for the State to protect the
public from harmful behavior and regulate certain behavior.
 Cases are brought by the State, most commonly in the name of the
Crown using the abbreviation ‘R’ or as a private prosecution by the
Attorney General ‘AG’ or Director of Public Prosecutions ‘DPP’.
 Punishment can include financial penalties, enforced restrictions,
physical work or be custodial.

5. Civil Law
 Governs the relationship between individuals;
Claimant v Defendant
 Broader scope includes; Contract law, Property law, Company Law and Tort Law.
 Tort Law is the act of a civil wrong; Defamation, Trespass, Nuisance and……
NEGLIGENCE!
 Remedies can include financial compensation (damages), the requirement to fulfill an
obligation (specific performance), an apology and injunctions.
 Tort law is often remedied by an award of damages £££££££’s

6. Sources of Law
Statutes
 Statutes are Acts of Parliament.
E.g;
 Offences Against the Person Act 1861. GBH and ABH.
 Sexual Offences Act 2003, Section 3 Sexual Assault.
 Mental Capacity Act 2005, Section 4 The Test for Best Interests.
 Data Protection Act 1998.

7. Sources of Law
Common Law
 Judge-made law followed through the system of precedent.
 Judicial Precedent is the system by which lower courts are
bound to adhere to the decisions of higher courts.
 Facts are considered and the law is applied to those facts.
 Judges can be seen to be creating law.
Gillick v West Norfolk and Wisbech AHA [1985] 3 All E.R 402

8. The Medical Exception
 To consensually harm another individual is considered largely morally wrong,
serving no positive contribution to society.
 R v Brown [1993]
 There are exceptions;
 Sporting injuries- Boxing or Rugby for example.
 Certain Body Arts- Piercing’s or Tattoos
 Non-therapeutic male circumcision
Medical treatment! ( with exceptions?)

9. Inter-Party Disputes
 Patient v Doctor (and employing trust)
-Allegation of negligence
‘Negligence is the failure on the part of one person to take
reasonable care which causes foreseeable damage to
another- In law it means more than carelessness- not every
act of carelessness which causes harm will give rise to a
successful claim in negligence.’ (Fletcher et al, 1995, p116)

10. Negligence
 A successful claim in negligence requires that the
claimant proves three elements;
 The defendant owed them a DUTY OF CARE
 The defendant BREACHED THAT DUTY OF CARE
 That the breach CAUSED the harm of which is
complained.

11. Negligence- Breach
Court decides the facts and applies/establishes law
Eg Bolam v Friern HMC [1957] ECT case, ‘Bolam Principle’.
“A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of men
skilled in that particular art.”
-Modified in Bolitho v City and Hackney HA [1997]
Where there is more than one opinion, the court is entitled to take a
logical analysis in deciding the most appropriate.

12. Negligence- Causation
 This component requires three criteria to be satisfied;
• That harm has been caused, physically or
psychologically.
• The breach in the standard of care must have
caused the harm.
Following Barnett v Chelsea & Kensington HMC [1968],
this is known as the ‘but for’ test. But for the breach in
the standard of care the harm would not have occurred.
That the harm caused was reasonably foreseeable. It is
based on a balance of probability, so it merely requires
a 51% probability of proof.

13. Inter-party Issues
 These can include;
 Clinical Negligence
 Consent as negligence or battery
 Data protection issues
 Health and Safety responsibilities
 Mental capacity issues

14. The Law Addressing Ethical Issues
 Fundamental ethical questions are decided.
Evans v Amicus Healthcare Ltd [2004]
 Human Embryo use without consent of male partner
not permitted where that partner is able to withdraw
his consent.

15. Legal Uncertainty
 No dispute but a lack of clarity in the law.
 Controversial and usually to avoid prosecution by
court declaration.
Airedale NHS Trust v Bland [1993]
 Withdrawal of treatment case-Act or Omission?

16. Treatment Disputes
 Patient/Professional Disputes
Ms B [2002]
Trespass to the person.
 Family/Professional Disputes
James v Aintree Hospitals NHS Foundation Trust [2013]
Supreme Court ruling on the test for determining best interests.

17. Crime
 R v Arthur [1981]
-Doctor found not guilty of attempted murder for ordering nursing care
only for child with Downs Syndrome. Omission not an act.
 HAROLD SHIPMAN
 R v Adomako [1995]
-Gross negligence manslaughter for negligence. Anaesthetist
convicted after patient death as a result of gross negligence.

18. Legality of Decisions
 Application for court to review the legality of a decision,
Judicial Review.
 Not whether the decision is correct but looks at how it has
been made.
R v Cambridge Health Authority, ex parte B [1995]
-Court of Appeal upheld HA’s decision not to provide further
treatment for 10 year old girl suffering from leukemia. Bingham
M.R held that it was a clinical decision and was made correctly.

19. EU Law
 Can overrule domestic law of matters governed by Treaties,
Regulations and Directives that the State is bound to adhere
to through membership.
E.g- Free movement of people and services.(Consider EU citizen
right to healthcare or EU healthcare provider’s right in UK
market).
 Cases heard in the European Courts of Justice and bind
States to adhere to the decisions.

20. European Convention on Human Rights
(ECHR)
 Human Rights Act 1998 renders the rights in the convention
enforceable in the UK.
 Consists of Fundamental and Qualified rights.
 Fundamental right cannot be restricted by the State.
 Cases held at the European Court of Human Rights in Strasbourg.
Dickson v United Kingdom [2008] – Article 12 (Right to Found a
Family)
Burke v United Kingdom [2006] –Article 2 (Right to Life)

21. Legal and Professional Issues
 Negligence- Role limitations, knowledge and experience.
 Consent Issues- Advocacy, capacity and autonomy.
 Mental Capacity Issues- Advocacy, autonomy and knowledge.
 Data Protection Issues- Confidentiality and autonomy.
 Criminal Issues- Integrity, honesty and conduct.
 Treatment Issues- Equality, professionalism and conduct.

22. Your Responsibility
 To practice within the law and protect the legal
rights afforded to your patients.
 Recognise that the HCPC Code of Conduct
incorporates some of these legal obligations.
 Recognise your legal and professional
accountability.

23. Summary
 We reviewed where the law comes from.
 We have explored how the law relates to healthcare.
 We have focused on some key issues in perioperative
care.
 We have considered how the law affects you as an ODP.

24. Questions?

25. References
 Beauchamp.T and Childress.J, 2009. Principles of Biomedical Ethics, 6th Edition, Oxford: Oxford
University Press.
 Brazier.M. and Cave.E, 2011. Medicine, Patients and the Law. 5th Edition, London: LexisNexis /
Penguin.
 Fletcher.N, Holt.J, Brazier.M and Harris.J, 1995, Ethics, Law and Nursing. Manchester: Manchester
University Press.
 Harris.J. (Ed), 2001. Bioethics. Oxford: Oxford University Press.
 Herring.J, 2012. Medical Law and Ethics. 5th Edition, Oxford: Oxford University Press.
 Mason.J and Laurie.G, 2013. Law and Medical Ethics. 12th Edition Oxford: Oxford University Press.
 Pattinson.S, 2011. Medical Law and Ethics. 3rd Edition, London: Sweet and Maxwell.