Common Law Methods Questions

Common Law Methods Questions

Introduction - Common Law Methods Questions

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Answer to question one-

The appeals that are made to the supreme court in the country of the United Kingdom are made either from an administrative court or from the court of the appeal. There is a requirement of the applications for taking permission to appeal in the supreme court. The application is made to the court of appeal, and if there it is refused, then it is made to the supreme court of the United Kingdom.

With reference to the case, Kostal UK Ltd v Dunkley and others, this is considered as the first case on which the courts of the appeal have taken into consideration section 145B of the trade union and labour relations act 1992 and its interpretations as well. The object of this act is to penalize the offers that have been made to the workers by their employers, especially to those who are members of a trade union. If that offer is accepted, then one or more terms and conditions[1] Of the same are no longer get determined with the process of collective bargaining. Further, it has been observed that appeals and review units that are ARU are considered responsible for handling all the cases prevailing in the supreme court.

Answer to question two-

According to the doctrine of the precedent, which is considered as a crucial part of the legal system in the United Kingdom and knowing how this doctrine works is very much important. Following the structure of the hierarchy of the courts of the United Kingdom, this is considered as the general point of view that in several cases which are bound to follow the decisions of the previous cases while many of the cases are not bound for the same. The doctrine of precedent operates based on Stare Decisis that is a Latin term which means to stand on the previous decision made. This doctrine of precedent means that the decisions[2] which have been made legally by the judges of the higher courts are considered to remain as a precedent so that the decision which is required to be made by some equal level of the courts or the lower level of the courts in the coming future might follow the earlier decision made. This is also considered that this doctrine of precedent is responsible for bringing certainty in the legal system of the United Kingdom. Concerning the case, Donoghue v Stevenson [1932], where it was held by the court that the person owed a duty of care who can foreseeably know the actions would affect the plaintiff. It has subsequently brought the development in the law of negligence.

Following paragraph thirty, Lord Leggatt has mentioned the reference of the case law Uber BV v Aslam [2021], in which there is an emphasis of the importance of recognizing the objective of legislation as well as identifying the importance of interpretation of a relevant language. Also, in this background and context, the law is considered as a whole and clear points towards the objectives where the relevant provisions must be achieved thereon. However, Lord Leggatt has identified the level of similarities among both the cases, and therefore it is required to be elicited mainly from the words and the criteria of specified provisions[3]. Although, the aim of seeking and securing article 11 of the human rights are also important, and therefore responsible for explaining sections 145B and 145D.

Answer to question three-

The European Court of human rights is also known as ECtHR and ECHR. This court of law is also known as Strasbourg court. This is an international court that lies under the council of Europe. This helps in interpreting the European convention of human rights. This court is responsible for hearing the applications that have alleged that a state that makes contracts and breaches more than one right specified under human rights. This has also responsible for enumerating in the convention, and also, therefore, it is referred to as ECHR[4].

The individuals or the group of the individuals or one or more contracting states has the right to apply. Also, not following the judgments, the court can issue advisory opinions. The convention has been adopted within the context of the council of Europe. All of the 47 states members are considered as the contracting parties to the convention. The court follows the judicial interpretation, which is considered a living instrument doctrine. This means that convention has been interpreted. Concerning the case law, Ireland v the United Kingdom, the European court of human rights and its commissions have been findings that have been appealed. In the year 1978, the facts were not in dispute as well as the judges of the courts of law have also followed their judgment.

Answer to question four-

The doctrine of the statutory construction or the rule of the construction states that the meaning of the unclear word or might include the ambiguous word. This is referred to in the context of a statute or might be referred to as a contract. This is required to be determined by considering those words with which it has been associated in the same context. This simply means that an unclear word or the unclear phrase is determined by the words or the phrase that surrounds the same.

Following paragraph 31 of the case law, Kostal UK Ltd v Dunkley and others, the judge refers to the objective of getting the results and the purpose that is prohibited. This is also important to note that this prohibited purpose is referred to what constitute the prohibited result[5]. For this reason, the relevant provision should be constructed, and the primary question must be identified along with its nature and scope.

ETHICS COURSEWORK

Aintree University Hospital NHS Foundation Trust v James [2014] 1 All ER 573

INTRODUCTION

In the case, Aintree University Hospital NHS Foundation Trust v James [2014] 1 All ER 573, which is the first case decided under the Mental capacity act 2005. The given act is given for making decisions on behalf of those who are not capable of making decisions on their own. Each individual who decides within the act is required to perform such, taking into consideration the best-suited interest of the individual. Decision[6] In the provided scenario cannot be considered more essential - the hospital in which a gravely sick individual was treated is asked to declare that it would be best suited to his interest for withholding particular treatment to sustain life from that individual.

DISCUSSION

Medical problems of Mr James and procedure to improve the condition

Mr James is found to be suffering from severe neurological as well as physical damage. His prognosis is considered to be gloomy up to such an extent that this is regarded to be quite unlikely that he would ever get independence in his life again. Even his present treatment is noted to be invasive, and each setback leads to a further disadvantageous situation for him.

Even his family is found to have a distant view when compared with the clinicians. The family member feels that each time the patient, Mr James had any infection, he was found to be pulled back.

Mr James himself was not able to take any decision regarding his clinical treatment. However, judges describe three major treatments to be followed in his best interest which is given as below -

1. Invasive assistance regarding the circulatory shoes - this indicates that a strong administration of vasopressor or inotropic drugs for correcting the episodes of severe low level of blood pressure. This process is very painful, consisting of needles and generally and insertion of centralized line. The drugs utilized in this process have considerable side effects and even lead to a heart attack. These were earlier utilized for treating Mr James.
2. Therapy of renal replacement - it indicates hemofiltration, which means the filtration of blood by a machine for making up the lacking function of the kidney. It also needs a huge line as insertion along with the anticoagulated drugs, which create the risk of stroke or bleeding. It could be quite unpleasant for the patient and might be because of the reason of the intense cold. Till now, Mr James was not treated through this technique.
3. CPR aur cardiopulmonary resuscitation - the objective of this is making heartbeat again that has found to stop beating. It could lead to different forms suggesting physical[7] compression and therapy of electrical shock to the chest or inflation of lungs. Forming effective is deeply e physical and could consist of considerable fractures in the rib. The CPR was found to be successfully provided to Mr James when his heart was earlier noted to stop beating in August.

Why Mr James should not be treated according to NHS Trust.

As per the mental faculties of Mr James, he is found to be suffering a considerable deterioration regarding his state of Neurology.[8] In July and after this, he was found to have a lack of capacity for making decisions regarding his treatment. The Matrix assessment regarding the Wessex Head Injury in November indicated severe impairment of neurology. However, it was recorded by the judge in November of the doctor Danbury in respect to Ms Baker, the case manager of the official solicitor, and the nursing and medical staff. It positively indicates that he was very pleased to see his son and wife when they arrived and recognized them.

Ethical reasons for which lady hale has allowed the appeal

Acceptance is given by the judge regarding his qualification for the diagnosis regarding the minimal state of consciousness. However, as pointed by Baker J in the W v M [2011] EWHC 2443, [2012] 1 WLR 1653, there exist a minimal spectrum of consciousness that extends from patience who are found to be only above the state of vegetation to the ones who are supposed to be on the border of complete consciousness. Further, it was added by Peter Jackson J diet for the given extension the term minimal in the level of diagnosis might be misleading. The present awareness level of Mr James not during the pharmaceutical crisis, probably more appropriately be explained [as] quite limited instead of minimal.

In the September of the year 2012, the hospital was found to rely on the filed proceedings in the protection Court, which seats declaration as -

1. Mr James lacks the capability to give consent[9] or refusal regarding any sort of treatment or it could be considered as uncontentious; and
2. Withholding for 4 particular treatments would be considered to be in his best-suited interest during the event of medical deterioration.

These four treatments consist of intravenous antibiotics in respect to any further complications regarding the infection; however, reliability was not found to pursue this.

Further, there was no suggestion aur withholding the present treatment, medically assisted hydration and nutrition, and the ventilation.

Do you agree with the decision of lady Hale?

Yes, I agree with the judge because he was careful in stressing that the case was not about a general power so that one could order how the doctors could treat the patient. The act is related to the objective, which is enabling the court to do for the patient about what the patient could have done for himself in the full capacity. When an individual applies under this act, the court is left with no huge powers than the patient if he is in his full capacity. The judge has also said that the patient is not in power to give an order to the doctor regarding a particular form of the treatment, although the patient has a particular right to refuse this treatment.[10]. This is concerned with the different case law in which Lord Donaldson held that the court had not required the health authority for following the particular course of the treatment. It was also observed that what the court could do is that it can withhold its consent towards the treatment of which it has been disapproved, and also it might express the approval of other types of treatment that has been proposed by the doctors and its authorities.

Conclusion

The given act is given for making decisions on behalf of those who are not capable of making decisions on their own. Each individual who decides within the act is required to perform such, taking into consideration the best-suited interest of the individual. The gap between various episodes of the infection is getting broad. Everyone is certain that he would never be able to recover[11] Up to his earlier life quality, but he is noted to have a huge enjoyment when he meets his family members and friends. The plaintiff was very determined to beat the disease of cancer.[12] And according to the family, he feels the same regarding his present predicament.

References

Curtice, Martin, Jessica Two, and Jonathan Packer. "End-of-life decision-making for people in a minimally conscious state: A review of the application of the mental capacity act 2005." Indian journal of palliative care 24, no. 3 (2018): 334.

Fredman, Sandra, and Darcy Du Toit. "One small step towards decent work: Uber v Aslam in the Court of Appeal." Industrial Law Journal 48, no. 2 (2019): 260-277.

Garay, Alberto F. "A doctrine of precedent in the making: The case of the Argentine Supreme Court's Case Law." Sw. J. Int'l L. 25 (2019): 258.

Gillette, Shanon L. "A Prima Facie Approach to Ethics in Law Enforcement: A Phenomenological Study of Municipal Police Chiefs Resolving Moral Dilemmas Within Their Command." PhD diss., Johnson University, 2021.

Hanretty, Chris. A court of specialists: Judicial behaviour on the UK Supreme Court. Oxford University Press, USA, 2020.

Kong, Camillia, and Alex Ruck Keene. Overcoming Challenges in the Mental Capacity Act 2005: Practical guidance for working with complex issues. Jessica Kingsley Publishers, 2018.

Kuijer, Martin. "The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession." The International Journal of Human Rights 24, no. 7 (2020): 998-1010.

Loomes, Gillian. "Researching about us without us: exploring research participation and the politics of disability rights in the context of the Mental Capacity Act 2005." Journal of medical ethics 44, no. 6 (2018): 424-427.

[1]Medvedeva, Masha, Michel Vols, and Martijn Wieling. "Using machine learning to predict decisions of the European Court of Human Rights." Artificial Intelligence and Law 28, no. 2 (2020): 237-266.

Wilkinson, Kate. "Some basic concepts of the Mental Capacity Act (2005)." Assessing Mental Capacity: A Handbook to Guide Professionals from Basic to Advanced Practice (2020).

[1] Hanretty, Chris. A court of specialists: Judicial behaviour on the UK Supreme Court. Oxford University Press, USA, 2020.

[2] Garay, Alberto F. "A doctrine of precedent in the making: The case of the Argentine Supreme Court's Case Law." Sw. J. Int'l L. 25 (2019): 258.

[3] Fredman, Sandra, and Darcy Du Toit. "One small step towards decent work: Uber v Aslam in the Court of Appeal." Industrial Law Journal 48, no. 2 (2019): 260-277.

[4]Medvedeva, Masha, Michel Vols, and Martijn Wieling. "Using machine learning to predict decisions of the European Court of Human Rights." Artificial Intelligence and Law 28, no. 2 (2020): 237-266.

[5] Kuijer, Martin. "The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession." The International Journal of Human Rights 24, no. 7 (2020): 998-1010.

[6] Gillette, Shanon L. "A Prima Facie Approach to Ethics in Law Enforcement: A Phenomenological Study of Municipal Police Chiefs Resolving Moral Dilemmas Within Their Command." PhD diss., Johnson University, 2021.

[7] Kong, Camillia, and Alex Ruck Keene. Overcoming Challenges in the Mental Capacity Act 2005: Practical guidance for working with complex issues. Jessica Kingsley Publishers, 2018.

[8] Loomes, Gillian. "Researching about us without us: exploring research participation and the politics of disability rights in the context of the Mental Capacity Act 2005." Journal of medical ethics 44, no. 6 (2018): 424-427.

[9] Wilkinson, Kate. "Some basic concepts of the Mental Capacity Act (2005)." Assessing Mental Capacity: A Handbook to Guide Professionals from Basic to Advanced Practice (2020).

[10] Wilkinson, Kate. "Some basic concepts of the Mental Capacity Act (2005)." Assessing Mental Capacity: A Handbook to Guide Professionals from Basic to Advanced Practice (2020).

[11] Curtice, Martin, Jessica Two, and Jonathan Packer. "End-of-life decision-making for people in a minimally conscious state: A review of the application of the mental capacity act 2005." Indian journal of palliative care 24, no. 3 (2018): 334.

[12] Loomes, Gillian. "Researching about us without us: exploring research participation and the politics of disability rights in the context of the Mental Capacity Act 2005." Journal of medical ethics 44, no. 6 (2018): 424-427.