intro to law tutorial

8/6/2019 Intro to Law Tutorial

http://slidepdf.com/reader/full/intro-to-law-tutorial 1/34

1

HEALTH LAW & ETHICS

2972 NRS

Ms Jayne McKee

Email: [email protected]



2

True or False«.



3

Housekeeping

Learning@GU Textbook

Tutorial Expectations ± Having a break

± Come prepared ± Respect for others

± Turn off phone



4

Assessment

Exams

± Tips for passing the exam«



5

Q uestions ??



6

Introduction What is law?

The law represents aset of sociallysanctioned rules andprinciples generated bythe history and values

of the society in which itoperates.

It can be prescriptiveand punitive



7

Tutorial Q1 Health law controls not only what health

professionals and health care institutions areexpected to do, but also what they are to refrain fromdoing as part of their professional practice



8

Tutorial Q 2

Historically ±

international lawrecognised 3 ways for a country to acquirenew territory:1. conquest,

2. cession and3. settlement.

³ it hath been held that if an uninhabited

country be discovered and planted by

English subjects all the English lawsthen in being, which are the birthright

of every English subject, are

immediately there in force´ (note

proviso that only so much of the

English law as is applicable to their

new situation)



9

Australian History 101!

Prior to federation Australia was a collection

of 6 separate colonies. In the late 1800¶s they all got together and

held a couple of conventions, where theydecided on federating and drafted the

constitution.



10

Australian History 101!

Commonwealth Constituti on Act 1900 (UK)

was passed by the Imperial parliament inJuly 1900.

In September 1900, Queen Victoriaproclaimed the Act

And the new federation came into force on 1Jan 1901, the first day of the new century.



11

The Australian Constitution

Consequently now, Australia is a fully

independent nation with its own Constitutionand a federal system of democraticgovernment

The Constitution sets out the parameters

under which the State and federalgovernments will operate and therelationship between them.



12

Commonwealth Legislation

Section 51 of the Constitution lists those

powers and areas of responsibility under which the Cth can operate with relativeindependence from the States. Its generallythose areas necessary to ensure uniformity

and consistency throughout the entirecountry.



13

R espective powers

Commonwealth s 51 (xiv) ± Insurance

s 51(xxiiiA) ±pharmaceutical andhospital benefits

s 96 ± the P¶ment maygrant financial assistance

to any State on such termsand conditions as theP¶ment thinks fit.

State of Queensland

The legislative authorityis defined in broad terms

To make laws for theµpeace, order and goodgovernment¶



14

Healthcare funding

Health funding

Cth

State

rivate

rivate 29% Commonwealth 36%

State35%



15

D elegated Legislation

An Act as passed by parliament may provide

that a particular person or body, for examplea Minister of the Crown, the GG or professional regulatory authority is delegatedpower to make rules, regulations, by-laws or

ordinances in relation to specified matters.



16

D elegated Legislation

Examples

± Health Act 1937 (QLD) Section 180 says that the Governor in Council may

make regulations

Section 132 regulations may be made about.....

± Mental Health Act 2000 Mental Health Regulation 2003



17

Tutorial Q 3 - Sources of Law

2 main sources of law in Australia

1. Legislation passed by parliament Federal ± limited by the Constitution (section 51 eg tax,

trade and commerce, immigration and industrial arbitration)

State ± peace order and good government of the State

Inconsistencies dealt with by s 109 Constitution ± which

says that the Cth law will prevail.2. Common law ± judicial decisions



18

Features of our legal system

Adversarial

2 parties ± impartial judge Strict rules of evidence

Natural Justice

Ensures that proceedings are conducted fairly, impartiallyand without prejudice. Requires that the court give the

participants a clear statement of the charges, adequate timeto prepare argument and the right to be heard on allallegations.

Presumption of Innocence



19

Q 4 - Precedent (Stare decisis)

The underlying principle is that if a case is decided ina certain way today then a similar case should bedecided in the same way tomorrow.

The reason or ground of a judicial decision is calledthe ratio decidendi and it is the ratio of case that isbinding in future cases.

Precedent can only bind if it comes from a higher court within the same hierarchy.



20

Q 5 -The Court Hierarchy

Jurisdiction

Certain courts can hear certain matters Jurisdictional power varies according to:

the seriousness of the offence,

the amount of compensation that can be awarded,

the nationality or place of residence of the parties,

Whether the matters are criminal or civil



21

The Court Hierarchy

igh Court of Australia

Full Court of the Federal CourtState Appeal Courts

State Supreme Courts

District Courts

Magistrate Courts

Federal Courts

Federal Magistrates Court

Full Court of the Family Court

State tribunals

Federal Tribunals

Family Court



22

The Court Hierarchy

Original and Appellate jurisdictions On first hearing the court in its original jurisdiction

Before a decision may be appealed ± need to establishgrounds. Then case will be heard in the courts appellate

jurisdiction

Grounds for appeal judge misdirected the jury

made an error wrt admitting or refusing evidence imposed wrong sentence

Need special leave to appeal to the HCA



23

Tutorial Q 6

Sally would commence her action in the District Court.

The Supreme Court presides over the more serious criminal matters

(where prison sentences of 14 years or more can be given) and thelarger more complicated non-criminal matters involving claims of morethan $750,000.

Decisions from the Supreme Court are appealed to the QueenslandCourt of Appeal which has 5 judges

Decisions from the Court of Appeal are µbinding¶ on single judges of the trial division and on all courts below in the hierarchy.

Grounds for appeal

judge misdirected the jury

made an error wrt admitting or refusing evidence

imposed wrong sentence



24

Tutorial Q 7 - 11

Civil action ± plaintiff v defendant

Criminal case ± accused v prosecution On appeal ± appellant v respondent

Judges make findings on questions of LAW

Juries make findings on questions of FACT



25

Tutorial Q 12

Criminal Cases

Beyond reasonabledoubt ± a standard of proof that

stipulates that a charge isnot proved if the court is notsatisfied beyond

reasonable doubt that theaccused committed theoffence charged.

Civil Cases

Balance of probabilities ± a fact is proved to be true

on the balance of probabilities if its existenceis more probable than not.



26

The Coroner

Coroners investigate the identity of the

deceased, the manner in which the deathoccurred and the cause of death.

Designed to be inquisitorial rather thanadversarial. The coroner is not concerned

with 2 or more parties arguing their case withone party a winner and the other a loser.



27

The Coroner

In terms of the court hierarchy the Coroner¶s

court is aligned with the Mags court. Coronialfindings relating to professionals, particularlywhere they have been adverse, have beenchallenged in superior courts in a bid to havethem overturned.

See secretary t o the Dept of Health and Community Services, Schultz and M oreland v Gurvich [1995] 2 VR 69.



28

The Coroner - Tutorial Q 13

The state coroner, the deputy state coroner and other magistrates acting as coroners, investigate reportable deathsthat occur in Queensland.

A reportable death is a death where: ± the identity of the person is unknown ± the death was violent or unnatural, such as accidents, falls,

suicides or drug overdoses ± the death happened in suspicious circumstances ± a µcause of death¶ certificate has not been issued and is not likely

to be issued ± the death was not the reasonably expected outcome of a health

procedure ± the death occurred in custody.



Coroner compared to Civil action

CORONER

Inquisitorial

Findings Aim

Evidence

Standard of Proof

Coroners will take into accountfamily and cultural concerns

when making decisions aboutthe deceased such as theextent of the autopsy.

NEGLIGENCE

Adversarial

Plaintiff v Defendant

Standard of Proof

Outcome

Aim

29



Coronial Inquest

An inquest is a court hearing conducted by the coroner to gather moreinformation about the cause and circumstances of a death.

An inquest is not a trial and there is no jury. Very few coronial investigations proceed to inquest. An inquest must be held if:

± the death is a death in custody

± the death occurred while the person was in care and there are issuesabout the care being provided

± the death occurred as a result of police operations unless the coroner

considers the circumstances do not require an inquest ± the Attorney-General directs that an inquest be held

± the state coroner orders an inquest to be held

± the District Court upholds an appeal against a coroner¶s decision not tohold an inquest.

30



J urisdictional Limits

A coroner has jurisdiction to inquire into the

cause and the circumstances of a reportabledeath. If possible he/she is required to find:

± Whether a death in fact happened

± The identity of the deceased

± When, where and how the death occurred and ± What caused the person to die.

31



32

R eading an Act

Jurisdiction where the act was passed

Act number

Date ± Generally the date of royal assent

Long Title ± States the purpose of the Act

Short Title

± The title normally used when referring to an act Sections

Parts, divisions and headings

See http://www.legislation.qld.gov.au/acts_sls/Acts_SL.htm



33

R eading a Case reference Paton & Anor v Parker & Anor ( 194 1) 65CL R 187

65 refers to the volume no of the law report

CLR is the abbreviation for the Cth LawReport

187 is the page reference



34

R eading a Case reference Paton & Anor v Parker & Anor ( 194 1) 65CL R 187

The litigants ± the plaintiff and defendant

± The appellant and respondant

± Co-plaintiffs and co-defendant.

Information on the case and location of the report

Year the case was reported

± Round brackets indicates volume number, not the year isthe essential identifying feature

± Square brackets indicates year is the important identifyingfeature.

intro to law tutorial

Documents