Foresters and the Law of Professional Negligence

1990 ◽  
Vol 66 (4) ◽  
pp. 336-340
Author(s):  
David S. Curtis
Keyword(s):  
Standard Of Care ◽  
Third Parties ◽  
Standards Of Care ◽  
The Law ◽  
Relationship Of ◽  
Similar Experience ◽  
Foreseeable Risk

The law of professional negligence imposes duties of care and standards of care on all professionals. The duties of care are based on avoidance of foreseeable risk and include the duty to:1) apply a reasonable level of skill and diligence2) warn principals, and third parties in a relationship of proximity, of risks inherent in particular courses of action, and3) avoid foreseeable harm, even if a customary practice is involved.The traditional standard of care, or level of skill that must be applied, is that of the average, reasonably competent and prudent practitioner of similar experience and standing. Conduct that falls below this standard may result in a finding of negligence in a court of law. Following a customary practice may provide a defence, unless the practice involves a risk that is foreseeable and avoidable.All foresters, as professionals, are subject to the law of professional negligence.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Property Rights, Fiduciary Duties, and the Control of Assets

2018 ◽  
Author(s):  
Aruna Nair
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Right ◽  
Formal Structure ◽  
Fiduciary Duties ◽  
Legal Power ◽  
The Law ◽  
Fiduciary Relationships ◽  
Relationship Of

This chapter examines the law governing the availability of claims to traceable proceeds. It argues that the language used in the case law—which uses the terminology of property rights and of fiduciary relationships—cannot fully explain the law, since such claims are often available in the absence of fiduciary duties and are not available to holders of many types of property right. It argues that such claims instead presuppose a relationship of ‘control of assets’: where the defendant has a legal power to deal with some asset, correlating to a vulnerability to a loss of rights in that asset on the part of the claimant, and coupled with a duty not to exercise the power. It argues that relationships that have this formal structure also share normative characteristics that justify the subordination of defendant autonomy that has been shown to be at the heart of the tracing concept.

Corporate Social Responsibility and Government: The Role of Discretion for Engagement with Public Policy

2021 ◽  
pp. 1-29
Author(s):  
Jette Steen Knudsen ◽  
Jeremy Moon
Keyword(s):  
Public Policy ◽  
Corporate Social Responsibility ◽  
Social Responsibility ◽  
Integrated Framework ◽  
The Law ◽  
Corporate Social ◽  
Relationship Of ◽  
The Relationship

We investigate the relationship of corporate social responsibility (CSR) (often assumed to reflect corporate voluntarism) and government (often assumed to reflect coercion). We distinguish two broad perspectives on the CSR and government relationship: the dichotomous (i.e., government and CSR are / should be independent of one another) and the related (i.e., government and CSR are / should be interconnected). Using typologies of CSR public policy and of CSR and the law, we present an integrated framework for corporate discretion for engagement with public policy for CSR. We make four related contributions. First, we explain the dichotomous and the related perspectives with reference to their various assumptions and analyses. Second, we demonstrate that public policy for CSR and corporate discretion coexist and interact. Specifically, we show, third, that public policy for CSR can inform and stimulate corporate discretion and, fourth, that corporations have discretion for CSR, particularly as to how corporations engage with such policy.

scholarly journals Rationalisations for women-only randomised controlled trials in conditions that affect both sexes: a scoping review protocol

BMJ Open ◽  
2021 ◽  
Vol 11 (2) ◽  
pp. e043370
Author(s):  
Ainsley Matthewson ◽  
Olena Bereznyakova ◽  
Brian Dewar ◽  
Alexandra Davis ◽  
Mark Fedyk ◽  
...  
Keyword(s):  
Clinical Trials ◽  
Scoping Review ◽  
Randomised Controlled Trials ◽  
Standard Of Care ◽  
Standards Of Care ◽  
Controlled Trials ◽  
Theory Approach ◽  
Reference Centre ◽  
Cochrane Database ◽  
Randomised Controlled

IntroductionWomen have historically been under-represented in randomised controlled trials (RCTs), including many landmark RCTs that established standards of care. In light of this fact, some modern researchers are calling for replication of earlier landmark trials with women only. This approach is ethically concerning, in that it would require some enrolled women to be deprived of treatments that are currently considered standard of care.ObjectiveIn an attempt to better understand the justification of a women-only approach to designing clinical trials, this study looks to systematically categorise the number of women-only RCTs for conditions that affect both men and women and the reasons given within the medical and philosophical literatures to perform them.MethodologyThis scoping review of the literature will search, screen and select articles based on predetermined inclusion/exclusion criteria, after which a grounded theory approach will be used to synthesise the data. It is expected that there will be a variety of reasons given for why a women-only trial may be justified. Electronic databases that will be searched include MEDLINE, EMBASE, Cochrane Database of Systematic Reviews, Cochrane Clinical Trials Register, Web of Science Proceedings, ClinicalTrials.gov, Philosopher’s Index, Phil Papers, JSTOR, Periodicals Archive Online, Project MUSE and the National Reference Centre for Bioethics.SignificanceThe scope of this study is to determine published rationales used to justify women-only randomised trials, both in the case of new trials and in the repetition of landmark trials.Ethics and disseminationResearch ethics board approval is not required for this study as there is no participant involvement. Results will be published as a stand-alone manuscript and will inform a larger project related to the ethics of a women-only RCT of carotid intervention for women with symptomatic high-grade carotid stenosis.

An Ethicolegal Analysis of Involuntary Treatment for Opioid Use Disorders

2020 ◽  
Vol 48 (4) ◽  
pp. 735-740
Author(s):  
Farhad R. Udwadia ◽  
Judy Illes
Keyword(s):  
Police Officers ◽  
Standard Of Care ◽  
Opioid Use ◽  
Ethical Concerns ◽  
Prescription Drug Monitoring Programs ◽  
The Usa ◽  
The Law ◽  
Court Mandated ◽  
Ethical Critique

Supply-side interventions such as prescription drug monitoring programs, “pill mill” laws, and dispensing limits have done little to quell the burgeoning opioid crisis. An increasingly popular demand-side alternative to these measures – now adopted by 38 jurisdictions in the USA and 7 provinces in Canada — is court-mandated involuntary commitment and treatment. In Massachusetts, for example, Part I, Chapter 123, Section 35 of the state's General Laws allows physicians, spouses, relatives, and police officers to petition a court to involuntarily commit and treat a person whose alcohol or drug abuse poses a likelihood of serious harm. This paper explores the ethical underpinnings of this law as a case study for others. First, we highlight the procedural and substantive standards of Section 35 and evaluate the application of the law in practice, including the frequency with which it has been invoked and outcomes. We then use this background to inform an ethical critique of the law. Specifically, we argue that the infringement of autonomy and privacy associated with involuntary intervention under Section 35 is not currently justified on the grounds of a lack of evidenced benefits and a risk of significant of harm. Further ethical concerns also arise from a lack of standard of care provided under the Section 35 pathway. Based on this analysis, we advance four recommendations for change to mitigate these ethical shortcomings.

Electronic Fetal Monitoring: Physician Liability and Informed Consent

1984 ◽  
Vol 10 (1) ◽  
pp. 31-91
Author(s):  
Myra Gerson Gilfix
Keyword(s):  
Informed Consent ◽  
Fetal Monitoring ◽  
Standard Of Care ◽  
Legal Issues ◽  
Standards Of Care ◽  
Monitoring Technique ◽  
Electronic Fetal Monitoring ◽  
Monitoring Procedure ◽  
Practice Standard ◽  
Physician Liability

AbstractElectronic fetal monitoring (EFM) has been criticized as ineffective, unsafe and costly. Despite existing controversy regarding the risks involved in using EFM, this monitoring procedure continues to be widely employed. In many jurisdictions, in fact, the use of EFM during labor may be considered the customary practice. This Article analyzes the medical and legal issues arising from a physician's use of or failure to use EFM. The Author argues that EFM subjects the mother and the fetus to risks which may be avoided if auscultation, a less intrusive monitoring technique, is employed. The ‘customary practice’ standard of care, the ordinary negligence standard of care, and the ‘best judgment’ and ‘duty to keep abreast’ standards of care are compared and applied to the physician's decision to use EFM. The Author contends that physicians who employ auscultation may not be liable for failing to use EFM; however, physicians who use EFM despite the evidence of its risks may be liable for failing to ‘keep abreast’ or to use their ‘best judgment’ or for negligence. Finally, the Author contends that both physicians and their patients are best protected when the physician elicits the mother's informed consent to employ a particular monitoring technique during labor.

Adapting Standards of Care Under Extreme Conditions

2009 ◽  
Vol 3 (2) ◽  
pp. 111-116 ◽  
Author(s):  
Kristine M. Gebbie ◽  
Cheryl A. Peterson ◽  
Italo Subbarao ◽  
Kathleen M. White
Keyword(s):  
Public Health ◽  
Health Professionals ◽  
Control Policy ◽  
Standard Of Care ◽  
White Paper ◽  
Ethical Framework ◽  
Standards Of Care ◽  
State Legislation ◽  
Routine Tasks ◽  
Criminal Charges

ABSTRACTThe filing of criminal charges against a group of clinicians in New Orleans for failure to meet expected standards of care following the hurricanes of 2005 made the growing concern among health professionals about care provided during extreme emergencies or disasters all too real. Questions about what may lead to censure, penalties from licensing boards, or lawsuits have come from nurses, physicians, and many other licensed health professionals. A panel convened by the American Nurses Association that included representatives of medical, public health, hospital, and government agencies considered the ethical, professional, and practical aspects of meeting standards of care in such circumstances. Clinicians are reminded that in emergencies, it is only the circumstances that change (perhaps radically); neither the individual’s professional competency nor the basic professional standard of care is different. In making prioritized decisions under such circumstances, the individual’s ethical framework is utilitarian, and there are 3 areas for action, even when some routine tasks are set aside: maintain worker and patient safety; maintain airway, breathing, and circulation; and establish or maintain infection control. Policy recommendations such as state legislation for the adoption of comprehensive immunity for volunteer health care workers, and the establishment of a medical review panel as arbitration board are also suggested. The resulting white paper summarizes the issues and provides guidance to individual professionals, institutions in which they work, and emergency planners. (Disaster Med Public Health Preparedness. 2009;3:111–116)

Violent Threats

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Third Parties ◽  
Literal Meaning ◽  
Acting Out ◽  
Psychoanalytic Perspective ◽  
The Law ◽  
Objective Meaning

The law generally takes people at their word. For example, contracts are interpreted based on the objective meaning of the written terms rather than by reference to the parties’ subjective intent. In contrast, psychoanalysis rarely trades in literalisms, instead examining words for their hidden associations, connotations, implications, and ambiguities. This chapter explains how a psychoanalytic perspective on the meaning of words reworks the law’s presumption of transparency. The discussion focuses on the law governing violent threats communicated to therapists but directed at third parties, the so-called Tarasoff rule. Under this rule, when a patient says to her therapist, “I am going to kill him,” the law requires that the therapist take the patient at her word. But while the Tarasoff rule may protect some potential victims, a psychoanalytic perspective suggests that the rule may do more harm than good, in particular by discouraging those individuals who struggle with violent thoughts to seek treatment, thus raising the risk of their resorting to violence. Psychoanalytic insights into interpretive opacity, transference, regression, and acting out illuminate how the law’s pragmatic reliance on the literal meaning of words can undermine the law’s own goals to protect individuals from harm to themselves and others.

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