The Decision Reached Of Cattanach V Melchior

Precedents have played a significant role construction and transformation public policy over time. The concern that judges face is whether establishing a new duty of care will influence public policy. This is the issue that results from in the Cooper v. Hobart case. The judge constructed a final decision that Hobart did not owe a duty of care to Cooper due to explanations that are delineated in public policy. This essay will discuss in favour of the judge’s decision for the reason that establishing a new duty of care would have conflicted with existing public policy. Initially, I will be providing a concise summary about the case of Cooper v Hobart. This involves the facts, issues and ratio. Then, I will elucidate what the Anns test is

By comparing the English approach with the Australian approach towards the wrongful conception or pregnancy cases due to medical negligence, this can be distinguished with respect to the case of Cattanach v Melchior. In contrast with the McFarlane case, which only allows the recovery of damages for the disabled child, the Melchior case could allow the damages to be awarded for the costs of fostering a healthy child.

The courts have generally supported NHS decisions about rationing. Critically analyse this statement with reference to the judicial reviews of NHS decisions not to pay for a treatment.

“A factor, by itself, may not be sufficient to cause injury but if, with other factors, it materially contributes to causing injury, it is clearly a cause of injury.”. This quote, stated by Lord Salmon in McGhee v National Coal Board is an example of the difficulty that can arise when determining if a defendant had materially contributed to the plaintiff 's injury when the medical evidence is inconclusive. It is argued that the material contribution test has changed the path of the law and as we will see when analysing both McGhee and Fairchild, it has blurred the distinction between legal and factual causation.

Mary Anne Warren (p.195-196) points out the exceptional circumstances of pregnancy; where one human is entirely biologically reliant on another and where it is impossible for complete personhood rights to not be in conflict between the foetus and the mother. Consider the following case. A mother and an expecting mother both express an intent to kill their child or unborn child respectively. Services are available to take the postnatal children from their mother without affecting her body. Yet to protect the foetus, one would have to imprison the mother until birth, or worse, force a caesarean on her. Warren (193) points out that forced caesareans are not merely a hypothetical

“Given modern medical knowledge, legal claims for wrongful life are inevitable. The common law must therefore now provide a satisfactory response and this it could easily achieve”. Discuss this statement critically.

The next minor claim Willis presents is that the life of an unborn child is less valuable than that of a woman who already has a history and has experienced life. According to Willis, a woman has more worth because she has “feelings, self-consciousness, a history, social ties” (2005, p. 515). By having to carry a baby, all of these important parts of her life are in jeopardy of being harmed (Willis, 2005). The concern Willis expresses for a woman’s life changing

The chapter starts the legal issues with sterilization, which is defined as preventing production by surgeries like vasectomy, oophorectomy, orchiectomy, salpingectomy, etc. These procedures can be perform voluntarily by choice with informed consent and compulsorily to prevent inheriting diseases – Not anymore. Another theme is wrongful birth for disable child and wrongful life, which cases brought behalf of the child because of physicians’ negligence. As mentioned in the text, most of courts decided that physicians are liable and responsible for wrongful birth within the statue of limitation to bring the case. However, only 4 states found that physicians are also liable for wrongful life. Dr. Horvath gave one example previously, which is that

However, as time went on, several problems arose which had to do with the principle of justice in healthcare. In America, it is the accepted norm that it is unjust to treat one person better or worse than another person, in similar circumstances (Tong, 2007, p.29). In an attempt

As a result of the present laws regarding negligence and duty of care, the Australian legal system and courts have established certain principles which aim at protecting and guiding medical practitioners in relation to their duty of care. One such principle is known as the Bolam Principle, or the Peer Acceptance Defence. This principle was initially established in the case Bolam v Friern Hospital Management Committee6, an English case, but was introduced into the Australian system in the High Court case Rogers v Whitaker7, where the principle from Bolam was applied. This principle is ‘a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though

The primary aim of any compensation system is to place the pursuer back to the position they would have theoretically been in, as much as is possible, had the negligence not occurred. Many claimants are not compensated for medical injuries inflicted due to the negligence of the medical professional, due to the challenges of accessing and receiving justice for clinical negligence claims. This failure of the current system is widely recognised and it prompted the Scottish government to instruct a review of the whole system. In this chapter, consideration will be given to the recognition of the need for reform of the current system. In particular, there will a discussion on the extent to which the recommendations of the review

The modern day approach to negligence has developed significantly across the twentieth and twenty first century. The stance now taken upon an action for negligence is that it must be established that a duty of care is owed by the defender to the pursuer in order for liability to arise. This came about following the decision made by Lord Atkin in the case of Donoghue v Stevenson, and has been further developed in a number of other common law examples. Prior to this revolutionary judgement, there was a quantitative restriction as to where a duty of care would arise, primarily only in relationships of a particular nature i.e. a doctor and their patient. Where a wrongdoer carried out an act outside a recognised relationship, there was no general

There are many practical difficulties associated with establishing the medical professional’s liability for the inflicted medical injuries, as identified by the review group above. In this chapter, the discussion will involve assessing the validity of the statement above to establishing whether it is time for Scotland to move away from the current system in order to provide justice (hereafter, compensate) claimants for their medical injuries. This will be done by

In Gregg v Scott, Mr. Malcolm Gregg (‘the claimant’), the House of Lords examined the law of negligence in the area of personal injury. In order for the claimant to have a successful claim in court, the onus to shifts to the claimant to demonstrate that a duty of care owed by the doctor, there was a breach of that duty, an injury was sustained, and the negligence on behalf of the doctor Dr. Andrew Scott (‘defendant’) was a cause of the ‘injury’. If these elements are not satisfied, the claimant may lose its entitlement to full compensation.

For years, it has been assumed by the vast majority of health care experts that everyone knows the guiding principle of ethics in healthcare. Everyone agrees that this guiding principle has the solid endorsement of the majority of the population. These presumptions are accepted with almost no contention or debate. In Justice in Medicine and Public Health, Rosamund Rhodes argues that “no single conception of justice explains the array of broadly endorsed medical and public health policies.” This thought challenges the classical approach of defining or defending one accurate view of justice in medicine. There are many different views of justice in health care that have been developed and debated. However, it is clear that no one view of the distribution of the scarce resources and services fits every situation.