V. ROLE OF LEGISLATION
As discussed briefly in the preceding paragraphs, the role of legislation rarely plays a part within the law of fiduciaries. However, as mentioned above, this essay will argue that the Australian courts have failed to adequately adapt the principles of equity to meet the needs of modern day society in relation to fiduciary duties. The law of equity has remained ‘frozen’ and has therefore lost its fundamental and underlining principle ‘to look at reality as it finds itself now.’
In Breen v Williams the issue of whether or not there was a doctor/patient fiduciary relationship present was based on Mrs Breen’s argument that the doctor had a positive obligation to provide her with her medical records. Without this underlying argument, the issue of the fiduciary relationship would not have arisen. Therefore, it became the High Court’s initial focus to consider whether or not there was a prescriptive obligation on doctors to provide patients with their medical records. Once the answer to that question was
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Justice Gummow in Breen v Williams considered that the doctor/patient relationship might be one which constitutes a fiduciary one. However, he concluded that the patient’s claim failed on the basis that the patient had not satisfied the second step of the two-fold test for determining the existence and scope of fiduciary duty, that is, by demonstrating the extent and nature of the obligations on the doctor extended to providing the patient with her medical records. If such obligation could be demonstrated through the AMA’s guidelines (if they were in existence during the time of judgment), it could be concluded that Justice Gummow would have considered that the second step of the two-fold test had been satisfied and thus that the doctor/patient relationship was in fact a fiduciary one in
Sarah Cullen and Margaret Klein, “Respect for Patients, Physicians, and the Truth,” in L. Vaughn, Bioethics: 148-55
One of the most complex, ever-changing careers is the medical field. Physicians are not only faced with medical challenges, but also with ethical ones. In “Respect for Patients, Physicians, and the Truth”, by Susan Cullen and Margaret Klein, they discuss to great extent the complicated dilemmas physicians encounter during their practice. In their publication, Cullen and Klein discuss the pros and cons of disclosing the medical diagnosis (identifying the nature or cause of the disease), and the prognosis (the end result after treating the condition). But this subject is not easily regulated nor are there guidelines to follow. One example that clearly illustrates the ambiguity of the subject is when a patient is diagnosed with a serious, life-threatening
In the realm of medical ethics, there are many topics that are debated and discussed, but there is not necessarily one clear, correct answer. One of these topics is paternalism. Many questions are bandied back and forth: is it beneficial, should it be disallowed entirely, are there instances when paternalism is good and beneficial, and the list goes on. For each of these questions there have been authors who have provided their comments. One such author is Alan Goldman. He draws a very firm line on paternalism, simply put: medical paternalism is deleterious to a patient because it intrudes on their primary rights of liberty and autonomy. This paper is going to expound upon Goldman’s viewpoint in detail, going through point by point how he presents his argument. There will then be a critique of Goldman’s viewpoint that will counter his main points. The counterpoints will show Goldman’s views on paternalism are incorrect and should not be considered valid.
Healthcare creates unique dilemmas that must consider the common good of every patient. Medical professionals, on a frequent basis, face situations that require complicated, and at times, difficult decision-making. The medical matters they decide on are often sensitive and critical in regards to patient needs and care. In the Case of Marguerite M and the Angiogram, the medical team in both cases were faced with the critical question of which patient gets the necessary medical care when resources are limited. In like manner, when one patient receives the appropriate care at the expense of another, medical professionals face the possibility of liability and litigation. These medical circumstances place a burden on the healthcare professionals to think and act in the best interest of the patient while still considering the ethical and legal issues they may confront as a result of their choices and actions. Medical ethics and law are always evolving as rapid advances in all areas of healthcare take place.
17 years old at the time of the crime, Simmons was tried as an adult. Simmons confessed to the crime and his sole defence at trial was an attempt to dongrade his punishment through the introduction of character evidence. The jury recommended the death penalty, which was imposed by the judge. In the judgment of the US Supreme Court, the laws of other countries and international authorities were instructive for the interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’. International consensus as reflected in the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child provided respected and significant confirmation of the conclusions drawn. International agreement on the juvenile death penalty
Miles, S. H. (2005). The Hippocratic oath and the ethics of medicine. Oxford: Oxford University
Trustees are fiduciaries with a trust relationship and confidence towards another, Millet J in Bristol West Building v Mothew states that fiduciary duties would be imposed on a person who holds a position on trust, confidence and influence. While there are established categories of fiduciary e.g. trustee/beneficiary and solicitor/client, the categories are not closed. Thus, Fridman found that an agent is a fiduciary because whether he is paid or acts gratuitously, he has the power to alter the legal relation of the principal. This essay will discuss the duties of a fiduciary, examining case laws and academic arguments.
The Supreme Court of Canada. Judgement by McLachlin J. Also present: Lamer C.J. and L’Heureux Dubé, Gonthier, Cory, Iacobucci, Major, Bastarache and Binnie JJ.
Principles of Biomedical Ethics, by Tom Beauchamp and James F. Childress, has for many critics in medical ethics exemplified the worse sins of "principlism." From its first edition, the authors have argued for the importance and usefulness of general principles for justifying ethical judgments about policies and cases in medical ethics. The organization of their book reflects this conviction, dividing discussion of particular ethical problems under the rubrics of the key ethical principles which the authors believe should govern our moral judgments: principles of autonomy, nonmaleficence, beneficence and justice.
Forrester, K., & Griffiths, D. (2010). Essentials of law for health professionals. Sydney: Mosby Elsevier. Retrieved from Google Books.
This paper explores the legal, ethical and moral issues of three healthcare colleagues by applying the D-E-C-I-D-E model as a foundation of decision making as found in Thompson, Melia, and Boyd (2006). Issues explored will be those of the actions of registered nurse (RN) John, his fiancé and also registered nurse (RN) Jane and the Director of Nursing (DON) Ms Day. Specific areas for discussion include the five moral frameworks, autonomy, beneficence, Non – maleficence, justice and veracity in relation with each person involved as supported by Arnold and Boggs (2013) and McPherson (2011). An identification and review of the breached code of ethics and the breached code of conduct in reference with the Nursing, Council, and Federation (2008) will be addressed. Lastly a brief discussion on how the three schools of thought deontology, teleology and virtue had effects on each colleague (McPherson, 2011) .
...d how these determinations effect a physician’s approach to various types of critically ill patients? These types of questions come in to play when one attempts to critically analyze the differences between the types of terminally ill patients and the subtle ethical/legal nuances between withholding and withdrawing treatment. According to a review by Larry Gostin and Robert Weir about Nancy Cruzan, “…courts examine the physician’s respect for the desires of the patient and the level of care administered. A rule forbidding physicians from discontinuing a treatment that could have been withheld initially will discourage doctors from attempting certain types of care and force them prematurely to allow a patient to die. Physicians must be free to exercise their best professional judgment, especially when facing the sensitive question of whether to administer treatment.”
The writer asserts that, although the doctor upholds the dignity of oaths by preventing or terminating any harm towards the patient, equally important is assessing the possible benefits and drawbacks of any treatment. Therefore, it is vital to discuss the principle of beneficence under two subheadings, positive beneficence and the utilitarian principle (Beauchamp, 1989, p.195).
Patient confidentiality is one of the foundations to the medical practice. Patients arrive at hospitals seeking treatment believing that all personal information will remain between themselves and the medical staff. In order to assure patients privacy, confidentiality policies were established. However, a confidentiality policy may be broken only in the case the medical staff believes that the patient is a danger to themselves or to others in society. Thesis Statement: The ethics underlying patient confidentiality is periodically questioned in our society due to circumstances that abruptly occur leaving health professionals to decide between right and wrong.
For many years there have been questions circling weather the decision held by the house of Lords in Caparo Industries plc v Dickman [1990] 2 AC presents the return to Pre-Donoghue v Stevenson [1932] AC 562 methods applied by the courts in determining and deciding the existence of duty of care in negligence. In this assignment I will investigate cases and the methods of Pre-Donoghue v Stevenson in setting out the duty of care along with the methods set, fixed and established in Donoghue v