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  • Archive for the ‘Law’ Category

    CHALLENGES FACING WTO

    DESCRIBE WHAT YOU CONSIDER TO BE SOME OF THE KEY CHALLENGES CONFRONTING THE WORLD TRADE ORGANIZATION AS ITS MEMBERS STRIVE TO CONCLUDE THE DOHA DEVELOPMENT AGENDA……………..?

    INTRODUCTION

    World Trade Organization which has been in existence since its formation several decades ago symbolizes intergration of the world trade systems. The organization has been attempting to harmonize the world trade in its effort to improve the standards of living of all people especially in the least developed countries through economic growth and development agenda. However, just like any other regional or international organization that is attempting to intergrate several member states either politically, economically or socially, WTO has faced many challenges since its formation. These challenges include political, environmental, cultural and economical which has affected its intergration efforts over the years. This has led to organization of many global trade forums in attempt to solve the challenges that are facing this organization. The most recent global forum is the Doha round that is just about to be concluded. This paper attempts to look the challenges facing the WTO in relation to Doha round negotiations.

    CHALLENGES FACING DOHA ROUND

    Doha round negotiations were started about 11 years ago in Doha Qatar under WTO. The negotiations have many agendas but the main agenda is to remove trade barriers among the member states globally. This will get the third world countries into the global trade system. However, the negotiations have faced missed ministerial meetings as well as failure to meet deadline as noted by Ismail (2009). As Bercelo (2007) notes, Doha round can be said to be in trouble as for now, there is no progress that is being realized as for now.  Many political issues that are based on national interests are the major obstacle to the completion of Doha round negotiations. Many countries including US and European Union are considering the effects of these negotiations on their global trade. The major issues in these negotiations that have formed the bases for division include agriculture, trade remedies, services and industrial tariffs. There are three main blocks in the negotiations where in one side, there are developed countries led by European countries, US and Japan. The second block includes key developing countries led by South Africa, Brazil, South Korea, china and finally there are least developing countries.

    Internal policies from the developed countries are always conflicting with the terms of Doha negotiations thus making it difficult for the WTO to remove the barriers. For instance, in US there is 2002 farm bill which has provisions that are conflicting with the terms of Doha negotiations. This bill was passed in 2002 and was meant to increase domestic subsidies in agriculture which is an action against free trade. This subsidies increase the US domestic agricultural production which limit the market available for third world countries. These subsidies are not friendly to trade and they turn to be costly for the third world countries. The breakthrough that is needed in these negotiations will come when the agricultural trade will be freed. All the negotiating partners believe that in order for this breakthrough to be attained, US has to make the first move and agree to reduce its domestic agricultural tariffs more that it has already done. This will allow more market to be freed in US, thus creating space for developing countries to export their agricultural products to the US market. In addition, European countries also need to reduce their agricultural tariffs in an effort to create more space for agricultural products from the developing countries and US. Finally, middle income countries like Brazil, china and India also need to reduce their tariffs on other type of products such as non agricultural products. The agreement need to benefit all the groups since demand for trade liberation from developing countries will not be accepted by the developed countries.

    According Barcelo (2007), another challenge that is facing WTO is that of discrimination from the systems of world trade. Many discriminatory trade organizations have been formed around the globe and different countries have joined one or more trade organization.  These organizations are discriminatory and go against the principles of WTO such as fairness and openness in trade. This forms a major obstacle in realization of Doha round negotiations. Thus as Stoler (2010) argues world trade organization need to align the discipline of subsidies in order to achieve the waited breakthrough in the Doha round. If US can agree to apply the 97 percent rule as it is negotiated, export from the least developed countries will increase by about 10 percent. However, to convince US to agree with this rule is the hardest obstacle facing the negotiations.

    CONCLUSION

    Though many people are optimistic that the Doha round negotiations will be completed, there are still some major obstacles that need to be solved in order to achieve the much awaited break through. These include national interests and discriminatory systems of the world trade. Thus for WTO to realize success in intergrating world trade, it has to address these obstacles standing on its path of success. However all players in the world trade also have a role to play in order to realize this goal.

    REFERENCES

    Barcelo, J.J. (2007), Challenges facing WTO: Doha Round and beyond. Retrieved on February 22, 2011.

    http://ww3.lawschool.cornell.edu/pdfs/Challenges_Facing_WTO-Barcelo_1-07.pdf

    Ismail, F. (2008), An assessment of the WTO Doha Round July-December 2008 collapse
    World Trade Review. 8(4): (579- 606)

    Melo, C. (2010), The Doha Round and Market Access for LDCs: Scenarios for the EU and US Markets. Journal of World Trade, 44(1): (251-291)

    Stoler, A. (2010),The Evolution of Subsidies Disciplines in GATT and the WTO

    Journal of World Trade.  44(4) :( 797- 809)

     

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    international business law

    could u please make foot notes for reference as well .. and separate answer five questions u also can make some several part to explain more clearly for each question

    TERM TWO 2012: LAWS20038 INTERNATIONAL BUSINESS LAWASSESSMENT ITEMS

     

    ASSESSMENT ITEM 1

    Due date:             Tuesday 28 August 2012

    Weighting:          50%

    Length:                 Approximately 3000 – 3500 words

    Objectives

    This assessment item relates to learning outcomes 1-5 as stated in the course profile and addresses material covered in modules 1-4 (weeks 1-5) of the course. Answer all questions.

    Please also note that:

    • Additional readings relevant to the assignments may be made available to students via the library’s Course Resources Online system. If so, students will be advised on this on the Moodle-based course website which all students should access on a regular basis.
    • While each assignment counts for 50% of the total assessment for this course, for ease of grading, each is allocated a total of 100 marks. Your notional aggregate score out of 100 marks will then be scaled back to a mark/score out of 50 for each of the two assignments.

     

    Question 1                                                                                                                                                          20 Marks

    “Domestic trade takes place within thoroughly embedded markets; there are clear rules and they apply to all transactions equally. International trade, on the other hand, is conducted in only weakly embedded markets; the rules either do not exist, or apply unevenly.” (DaniRodrik, 2008)

    Discuss and critically appraise Rodrik’sabove comments together with the Schaffer et al. (2012, pp.38-40) account of the risk of international trade’s exposure to foreign laws and courts, in the context of trade between two countries such as Australia and New Zealandwith a closely shared cultural, economic, legal and political heritageand which have entered into an extensive array of law harmonisation, mutual recognition, free trade and investment treaties.

    Question 2                                                                                                                                                          20 Marks

    Outline and discuss in general terms,the main current issues which arise concerning the choice of (non-state) Islamic law to govern international finance contracts and the likely feasibility of ‘combined law’ contracts e.g. of Sharia law and Australian law having regard to the UK case Shamil Bank of Bahrain EC vsBeximco Pharmaceuticals Ltd &Ors[2004] EWCA Civ 19 (http://www.bailii.org/ew/cases/EWCA/Civ/2004/19.html).

    Question 3                                                                                                                                                          20 Marks

    Outline and describe the principles and process of (alternate) dispute resolution (ADR) inIslamic or Sharia law and critically appraise the merits (utility) of Sharia law based international commercial arbitration. You may consider this in the context of a specific Islamic country’s legal system and jurisdiction, e.g.Brunei, Indonesia, Malaysia, Pakistan or Qatar etc.

     

     

     

    Question 4                                                                                                                                                          20 Marks

    Visit the website of the Republic of the Philippines Court of Appeals, Manila, Third Division, download the 13 March 2012 (item 543) judgment in Takenaka Corporation &Asahikosan Corporation vs. Philippine International Air Terminals Company Inc.,(http://ca.judiciary.gov.ph/cardis/CV96502.pdfand together with any other material you may care to consult, answer the following questions.

    (a)     Provide a short account of the key, material facts which gave rise to this case together with the main parties and the progression of the dispute through the arbitration/court hierarchy in England and the Philippines.                                                                                                 (5 marks)

    (b)    Outline the grounds which defendant-appellant PIATCO relied upon in asserting that the December 2005 foreign judgment (including orders for payment) of the English High Court of Justice wasn’t valid and shouldn’t be recognised and enforced.                                         (5 marks)

    (c)     How did Associate Justice Rebecca De Guia-Salvador (Justice DGS) deal with PIATCO’s various arguments against enforcement of the London orders, and what was her final decision and order?                                                                                                                                                                        (10marks)

    Question 5                                                                                                                                                          20 Marks

    A leading Queensland manufacturer of sugar cane harvesting and processing equipment,CuttySarkLtd (CSL),wishes to expand into the large,somewhat under-mechanised Philippine sugar cane industry.  It plans to sell its product range direct to about 20 medium sized Philippine equipment importers and 10 provincial sugar cane mills, taking advantage of awell-funded Philippine Government initiated five year sugar industry modernisation program. The program (i) exempts sugar industry related plant and equipment imports from all taxes and charges and (ii) grants importers and cane mills zero interest five year development loansin order to finance that modernisation program which relies heavily upon imports. CuttySarkseeks your advice as an international business adviser, on the following critical legal aspects of its proposed standardised contracts for the sale and purchase of its 30 itemproduct range varying in value from US$10,000 to $1 million (all amounts in US dollars hereafter).

    (a)     The choice of law – Australian, Philippine or some third country.                                         (5 marks)

    (b)    Inclusion of a compulsory arbitration clause.                                                                                (5 marks)

    (c)     The comparative merits of arbitration in Australia, the Philippines or elsewhere and choice of the arbitrator or arbitral body.                                                                                                                        (5 marks)

    (d)    The comparative ease of enforcingAustralian and Philippine “foreign court” judgments or arbitrations award respectively in the other country.                And briefly appraise the likely viability of CuttySark’sproposed Philippine expansion if the Philippine Government insisted that as a condition of loan support, all plant and equipment import contracts be made subject to Philippine law and arbitration.                                                                                                       (5 marks)

     

     

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    Organized Crime

    Debate the Pros and Cons of the RICO statute.
    This paper should be a minimum of five (5) pages and utilize a minimum of three (3) sources.  In addition to your five (5) page paper, you will need a Cover page and Reference page…………

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    SUPREME COURT AND FOREIGN LAWS

    Should Internation Foreign Law and Global Considerations shape Supreme Court Rulings?

    INTRODUCTION

    The supreme court of the US was established by article (3) of the U.S constitution in 1789. The court was established by the 1789 Judiciary Act which gave the guidelines of the composition of the Supreme Court. According to this Act the Supreme Court was to be made up one chief justice and five other associate justices. The Supreme Court was to sit or meet in the capital of the nation. However, this Act never stipulated the specific functions, powers or even the organization of this court. Article(3) of the constitution states that the judicial powers of the country will be bestowed on the supreme court and other inferior courts which will be established and ordained by the congress as may deemed necessary. It was then left to judges of the Supreme Court and the congress to establish authorities and define the operations of the whole judicial system. Due to lack of any direction from the U.S constitution, the new judicial system spent almost the first decade of its composition trying to establish its structures. In fact, for that whole decade it was the weakest branch of the government among the three branches of the government. The debate whether there is relation between the rulings of the Supreme Court and foreign laws has been there for long. Many people ask whether there is need for Supreme Court to consider international or foreign laws when making its rulings. This research paper will therefore attempt to find whether the rulings of the Supreme Court in the US are influenced by the foreign law. The paper will also look at how the global issues and considerations affect the rulings that are made by the US Supreme Court.

     

     

    According to the Huffington Post, the discussion of whether it is important for the Supreme Court to consider international laws when it is interpreting the clauses of the constitution is wastage of time. This is because judges of the Supreme Court can use any law when they are making their rulings. The post quotes Judge Stephen Brayer while giving his opinion that the debate is irrelevant to him as judge since he can read from any source of law while he is making his ruling. Justice Brayer argues that there are possibilities that even other foreign countries do not consider the Americans Laws when they are making their court rulings.

    According to justice Ginsburg as quoted in the New York Times when he was defending the citation of foreign precedents, the controversy arises when the Supreme Court see itself tied by the international laws compared to considering itself part of that international law. Justice Ginsburg continues to argue that, lack of engaging foreign law when the Supreme Court is making its rulings, minimizes the influence and power of the US Supreme Court when it comes to major public and global decisions. Justice Ginsburg argues that the supreme court Of Canada is quoted widely abroad compared to the US Supreme Court. This is because Supreme Court of Canada also uses foreign laws when it is interpreting the constitution of the country.

    As stated by Calabresi and Zimdahl (2005), the legitimacy of the citation derived from the foreign laws has brought comments especially from the two cases which were ruled recently by the Supreme Court. These cases were in Roper v Simmons and the case of landmark that removed death penalty partially. In the first cases, Roper vs. Simmons, the judges argued that foreign laws were relevant in that case though judges made a different conclusion about the constitution provisions on this type of death penalty. In addition, the three judges made a declaration that foreign opinions and laws are not relevant to the court adjudications. However, the judges of the Supreme Court used the foreign law in order to support their ruling.

    In another case Texas v Lawrence, the Supreme Court used the ruling made by human rights court of Europe to decide this case.  The court declared all the state laws that prohibit homosexual sodomy unconstitutional, as it has been decided by the human right court there before in Europe. The judges argued that in referring to foreign laws when they were deciding this case, they wanted to support the views of the court on the punishments that violate the eighth amendment of the constitution.  According to justice Scalia who was one of the judges  the Texas v Lawrence case, the use of foreign laws when deciding cases in the US court will harmonize the world and create more peaceful world since international laws are applied in all countries.

    Foreign sources of law citations in the US courts are bringing a sharp contrast between the liberal and conservatives judges of the Supreme Court. On one side there are those liberal judges who think the use of foreign laws will improve the decision of the courts and also help to harmonize the US laws with the international laws. This liberal wing is led by Justice Thomas and Scalia of the Supreme Court.  These judges argue that if the US Supreme Court fails to learn from the laws of other countries, they will be the loser. The other conservative wing led by politicians and other conservative commentators advocate for the use US constitutional provisions when making all the rulings.

    Calabresi and Zimdahl argues that though the supreme court has applied foreign laws in the ban of juveniles penalties and legalizing the rights of the gays, the adoption of foreign law citations in the US courts will favor conservatives wing in many ways. For example, in hotly debated issues of abortion, adoption of foreign law citations will favor conservatives more than liberals.  This is because many foreign nations have abortion laws that are more restrictive compared to the US abortion laws. Despite  the fact that many nations in Europe allows abortion, they restrict abortion availability only to the first few weeks after fertilization  compared to the US laws that allows it on demand. America is one of the six nations in the globe that permits abortion on demand.

    Scholars have also contributed greatly on the debate about whether US should adopt foreign laws or not. Many scholars argue for the Supreme Court to adopt the citation from foreign laws citing the benefits of this practice to the country as a whole. They argue the Supreme Court need to give more attention to the trend in the international law. However some scholars disagree with this decision and argue that the determination of the US laws is not supposed to be based on laws, judgments and precedents of foreign laws unless those laws and judgments intend to give more information on the understanding of the united state laws.

    Though the debate is too hot of whether the Supreme Court should adopt the use of foreign laws while judges are making ruling, it is important for us to look back and see whether this practice has started just recently. In cross examination of what has been happening in the history of the US supreme court since its establishment 200 years ago, this practice of citing foreign laws has been there and it cannot be referred to as unprecedented as justice Scalia argues. This practice of citing foreign laws by the US court has been in existence but the practice has been on rise in the recent past which may make it problematic if not well checked by the law. There may be cases where the Supreme Court may have used these foreign sources of law in a questionable way like in the case of United States v Reynolds.

    District of Columbia v. Heller

    According to Eliya and Porat (2009), this is one of the major rulings that have been made by the Supreme Court in year 2007/2008. This case involved gun control and had many issues like constitutional originality, judicial minimalism and the standard verses rules debate. It was the first case in the history of US to make a ruling whether according to the second amendment of the US constitution, allows an individual to bear and keep firearms for personal defense. In his ruling, justice Brayer used the doctrine of proportionality from European laws and introduced it to the jurisprudence of American constitutional. The influence of constitutional law of Europe and other constitutions from abroad influenced the ruling of this case. The supporters of this ruling argued that the US and European countries share a common doctrine of proportionality and therefore judgment based on European constitutions can also apply in US. However the critics of the ruling argued that, the decision to apply foreign precedents in making the ruling was interference with the independence of the US constitution when it comes to the interpretation of the law.

    Braving (2008) argues that there has been wide gap between the international and the domestic law.  One of the biggest setback in the international law happened in 2008 when the US Supreme Court ruled that some of the international treaties ratified by the country are not applicable in the domestic courts unless first of all, the congress make them applicable. Foreign governments have been complaining about lack of US compliance with Vienna convention of 1969 for many years. On consular relation, the convention requires that foreigners should be connected with diplomats from their country when they are under any crises or threat in foreign nations. Under this convention the US promised to give ‘compulsory jurisdiction’ to the world court over the disputes arising from the treaty. However the country has not been committed to this promise and thus widening the gap between the domestic laws and the international laws.

    The Supreme Court also put into consideration global issues when making its ruling. This is to ensure there is some harmony when it comes to the interpretation of the international convention. This was evident when the Supreme Court used this principle in interpreting the convention of Hague abduction.  The Supreme Court applied the interpretation of the convention in Abbott v. Abbot case. The case involved a child with a father from Britain and mother from America who moved to Chile and separated after sometime. One court in Chile had given the child’s mother the responsibility of controlling and caring for the child while the child’s father was allowed some visitation rights. The mother of the child took their son to Texas after sometime which made the child’s father to file a case under this convention demanding the child to be returned to Chile.  In return the mother argued that, Hague convention could not apply since the father of the child did not have the right to custody. In his defense the father stated a Chilean legislation that gave him the right to do so. In its ruling the court argued that the Hague convention applied in the case and if the Chilean statute applied, it will lead to Hague convention being rendered meaningless.  The statue could make the Hague convention inconsistence in many similar cases and therefore not applicable in many situation. The Supreme Court therefore considered global view while making this ruling in order to harmonize international laws. This may have been inconsistent with the domestic laws but for the sake of harmonizing international laws, the court ruled in favor of the Hague convention.

    CONCLUSION

    The citation of foreign or international laws, judgments or precedents while making ruling in the US supreme court and other inferior courts has been an issue of debate for many years. They are those judges and other professionals who support the use of these foreign laws like Justice Scalia of the Supreme Court. These judges are referred to as the liberal judges. On the other hand there those judges and politicians who are opposed to these practices who are referred to as conservatives judges and they advocate for the use of these laws, precedents and judgments. Each group always gives the reasons for taking side in this hot debate. Liberal judges argue that the use foreign laws will help to make decisions made by judges’ better which will ensure fair judgments are given in courts. They also argues that the adoption of the use of foreign laws will make the US laws also to be recognized by other countries and also help to harmonize international laws that will make the world more peaceful. The conservatives argue that the adoption of foreign sources of law will interfere with the independence and powers of the US constitution. As we have seen in our study many cases have been decided by the Supreme Court and other inferior courts using laws, precedents and judgments from the foreign laws. It can be seen that the practice of applying foreign law has not started in the recent past but it has a history similar to that of the Supreme Court. However in the recent past there has been increased use these foreign laws in the US courts which have accelerated this debate. This has made the liberal judges to argue that, we do not need anymore to argue whether the foreign laws, judgments and precedents should be used in courts but instead how to use them since their use is almost mandatory in the US court rulings. In conclusion, foreign and international laws affect the rulings of the Supreme Court in many ways as we have seen earlier.

    BIBLIOGRAPHY

    Journals

    Bravin,J. (2008, Mar), Court Deals Blow to International Treaties.Wall Street Journal (Eastern edition), Mar 26,. p. A.3

    Calabresi, S.G & Zimdahl, S.D. (2005), The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision. Northwestern University – School of Law

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700176

    Holland, J.J(2011,FEB), Supreme Court Looks To Foreign Law For Tips . Huffington post,12

    http://www.huffingtonpost.com/2010/04/01/supreme-court-looks-to-fo_n_521265.html

    Liptak,A.(2009,Apr), Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa .Newyork Times, 11

    Bottom of Formhttp://www.nytimes.com/2009/04/12/us/12ginsburg.html?_r=1&em

     

    Porat,I. & Eliya,M.C(2009), The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law.The San Diego Law Review. Spring. Vol. 46, Iss. 2; p. 367

    Legal Acts

    Eighth Amendment of the US Constitution

    Top of Form

    Judiciary Act (1789)

    Legal Cases

    Abbott ex rel. Abbott v. Burke, 199 N.J. 140; 971 A.2d 989 (2009). District of Columbia v. Heller, 554 U.S. 570 (2008)

    Lawrence v Texas, 539 U.S. 558 (2003)

    Roper v. Simmons, 543 U.S. 551 (2005)

    United States v. Reynolds, 345 U.S. 1 (1953)

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    VIDEO GAME REGULATION TO THE MONITORS

    Should state and local government enact legislation that bans the sale or rental of excessively violent or sexually explicit video games to children under the age of 18?

     

    INTRODUCTION

                Over the years many laws have been proposed to regulate the contents in the videos, music, magazines and other forms of media and more so to the children and young people who are under the age of 18 years. These legislations focus on how suitable the contents of these media are to the audiences who are targeted. The look at the suitability of the contents in regards to issues like violence, sex, profanity, substances abuse, impudence and other types of contents that are suitable for mature people only. Some of these legislations for instance will aim to restrict those who distribute videos not to sell or rent those videos to those people who are under 18 years. Other seeks to restrict movie theaters to select the contents of the movies they are showing to the underage. For the past few years the debate that is in the public domain is whether the state government and the local governments should enact the laws that should stop the sale or rental of those video games that are sexually explicit or excessively violent to the children who are below eighteen years. This paper will focus on the reasons why these legislations need to be passed by state and the local governments.

    NEGATIVE IMPACTS OF VIDEO GAMES TO THE CHILDREN

                According to the research that was carried by Gentile et al (6), there is a drastic increase in the number of hours that adolescent boys and girls are playing video games recently. On average adolescent boys are spending about thirteen hours per week on the video game while adolescent girls are spending about five hours per week on the same. This means that there will be increased impacts of these video games on the lives of these teenagers both positively and negatively. One feature of the video game is that they require the players to become part and parcel of the game and not just watching like in the case of movies. The player shares in the experiences of the game which make the player to see the reality in the game. This will shape the perceptions of the player towards life experiences which may affect the player either positively or negatively though there some positive impacts of video games to the children such as increased computer literacy, the negative impacts far outweigh the benefits of these video games. This calls for the need of the government and other agencies to intervene in order to control this timely bomb that will affect lives of children now and even in days to come. Video games and other television programs will affect the performance of the children in school. Children who spend a lot of time and more so on the weekdays watching television or playing games are likely to perform poorly in the school.

    Gentile et al.(6) continue to argue that teens who play video games for long period tend to show some of the following characteristics; they are very aggressive, always fighting with their age mates, not in good terms with their peers and teachers, show poor performance in school. According to research, video games instill certain character in the player as the player try to identify and emulate the favorite characters in the game. The player is also in a position to control the favorite character actions thus making him or her to internalize those actions in his or her life. Bushman and Aderson (1680) argue that there is a high tendency for player who has played video games for a long time to develop aggressive thoughts. They continued to argue that when a player who has played violent video games for long time is confronted by a life situation, they are likely to respond in an aggressive way. According to the joint statement that was presented in the summit of public health 2000, increased exposure to videos that are violent will increase thoughts and feelings of aggressiveness and more so to the children. These effects of aggression will be long term and may affect the behaviors of the player in the long term. The report also said that increased video games that are violent among adolescents and children have great influence on their behaviors.

                Video games are very interactive in nature and if they happen to be violent, the player will acquire that character in the course of that interaction. The player in many video games gain more point depending on how he or she is aggressive. The violence action is repeated many times in the eyes of the player. The player of the game also plays a crucial role in the interaction with the game where he or she control the violence and also witnesses that violence as it happens. The player experiences the violence in terms of kicking, shooting, stabbing and killing. Through these repeated and interactive actions the player learns or acquires these violent behaviors. Video games have been blamed for teaching children and adolescent wrong values. Some video games and movies teach players and viewers that wrong values such as vengeance, aggression and violence are rewarded. Non violent solutions and negotiations are not presented as option in many confrontations. Many video games and movies also portray women and girls as weak characters who are sexually proactive and helpless.

    When the children spend so many hours in the video game, they may become isolated socially for they will have no time to play and interact with other kids. The child is also going to have little time for other crucial activities like reading, doing homework, sports and interaction with family members and friends. In addition video games may limit the imaginative thinking of the child which is crucial in the growth and development of the child. Many video games require the player just to follow instructions which are constant and repeated over time. Though the issue of creativity development is disputed by some researchers, video game in one way or another will slow the creativity of the player. Video games also shape the moral values of the teens and the children who may acquire some of these wrong values which have been presented as rewarding by the video games and movies. This is likely to affect the behaviors of these people even as they grow. Cases of social violence are likely to increase as a result of aggressive behaviors among the youth. These effects of violent behaviors have made young people in high school and collages to be involved in cases of violence such shooting their fellow students and teachers, increased strikes in school and other similar cases. The case below is an example of how video games can impact negatively the behaviors of young people in school.

    Columbine families’ v Computer game makers

    In this case, two students in Columbine High school shot twelve students and one teacher in 1999. The relatives of those people who were killed in the massacre filed a law suit against the makers of computer games claiming that the video games contributed to the killing of their loved ones. They argued that two teenagers who carried out the massacre were influenced by the violent video games they had watched. The plaintiff blamed 25 companies that make computer games for the killing and they wanted to be paid a damage of about $ 5 billion. However, the case was likely to be thrown out by the court just like the previous similar cases where the court said that the computer game makers are not subjected to the laws of product liability.

                The legal case above shows how the video games and movies can affect the behaviors of the player negatively. There is possibility that the aggressive behaviors in these two students were learnt and acquired from the computer games they play or the movies they watch. Thus there is great need for the state government and local governments to enact laws that will prevent such crime from happening again. If the governments enact laws regulating the accessibility of video games and movies among the students, then cases of violence will decline in the society. Though critics to these legislations argue that, such restrictions will interfere with the rights of the children and teenagers, the rate of crimes that result from violent behaviors among the youths are likely to decline with the enactment of the new legislation. Youths are the people who are mostly affected by the sexual contents that are portrayed by the different forms of media. Adolescent stage is a period where many developments take place among the teens such as sexual attitudes, gender roles and the shaping of their sexual behaviors. Therefore the contents they are exposed to will help to shape their perceptions towards sex and sexuality that will affect their future. According to the broadcast media survey, 80% of the movies shown in the network television stations have some sexual contents. 60% of these videos portray impulses and sexual feelings and a good percentage also show body movements that are sexually suggestive and proactive clothing.  Many movies also pay little attention to the risks of sexual intercourse that is unprotected and its possible consequences to those involved. The situation is similar even when it comes to the video games that have contents that are sexually explicit in them.

                Consequently, when youths and children are exposed to those movies and video games that have sexual explicit contents at such an early age, cases of premarital sex and early pregnancies become common phenomena among young people. Healthy professionals and policy makers have also warned about the increased cases of sexually transmitted disease among the youths such HIV infections. This calls for proper rules and regulations that will ensure that the ability of the youth to access video games that have sexually explicit content is limited. This will ensure that youths do not access these video games in anyway. Increased cases of early pregnancies and sexually transmitted infections among the youth who are in school pose a great danger to the future of the nation. Many young people whose productivity is needed because of the future of the nation are dying prematurely as a result of these sexually related infections. Thus there is an urgent need for the state and local governments to enact the legislations that will limit accessibility of the youths to these video games that are sexually explicit. Though the critics of these legislations argue that this legislation may interfere with the rights of the youths to choose what they want, the enactment of this law will do more good than harm and therefore the state and the local governments should enact this law for the sake of the future of the youths and the country as a whole.

                It is becoming challenging for the parents in America to protect and monitor their children from the negative influence of the media. By enacting the legislation, the state and the local governments will help the parents to protect their children from negative media influence. The government also has a constitutional duty to shield its citizens including children from sexuality and violence. Several states such as Washington and Illinois have made attempts to enact this legislation but have always faced several challenges such as being termed as unconstitutional by the court judges. Other critics of the legislation have also argued that it is not clear which video games should be banned and which one should not be banned. For in 2006, Michigan State passed this law of banning sale and rental of violent and sexually explicit video games to the minor and put a heavy fine on any person who was found breaking this law. However, in 2006, when judge Caram was making his ruling, he said that video games are usually protected by fourteenth and the first amendment of the constitution. Despite all these opposition, every reasonable person sees the need for legislation to protect the youths and children from negative media exposure. Though the Entertainment software rating board (ESRB) has tried to provide ratings and the information on the different media contents, much need to be done since as for now there is no any law in US that prohibits the rental and the sale of the violent and sexually explicit video games to the minor.

    CONCLUSION

    The impacts of video games with violent and sexually explicit contents cannot be over emphasized in the modern society. Most of these video games need to be restricted from the children and the youths because of the way they are negatively affecting their growth and development. Though the critics of the of the legislation may argue that the sale of video games to the minor is unconstitutional since it is protected by the fourteenth and the first amendments, the government also has responsibility to protects its minors from the exposure of violent and sexually explicit materials. These negative impacts are also heavily costing the nation and its future generations through deaths resulting from sexually transmitted diseases and increased death resulting from the violent crimes. The social and economic cost of these negative impacts is also increasing to the society as increased resources are spent to treat the consequences of these impacts. So there is need for state and local government to enact this legislation for the sake of the future of this country.

    References

    Bushman, B. & Anderson, C. Violent Video Games and Hostile Expectations: A Test of the General Aggression Model. Personality and Social Psychology Bulletin, 2002 (1679-1686).
    Columbine families sue computer game makers. Retrieved on March 14, 2011.

    http://news.bbc.co.uk/2/hi/science/nature/1295920.stm

    Gentile, D. A., Lynch, P., Linder, J. & Walsh, D. The effects of violent video game habits on adolescent hostility, aggressive behaviours, and school performance. Journal of Adolescence, (2004)27, 5-22.

    Gruber, Enid & Grube, Joel. Adolescent sexuality and the media a review of current knowledge and implications. BMJ publishing Group, 2000. Print. Retrieved on March 14, 2011. (1)

    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1070813/

    Joint Statement on the Impact of Entertainment Violence on Children: Congressional Public Health Summit. (July 26, 2000.) Available: http://www.aap.org/advocacy/ releases/jstmtevc.htm.

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    A LEGAL CASE NAME:

    Advise Ethical Co as to the possibility of obtaining compensation in excess of the £500 limitation………….

     

    INTRODUCTION

    The Sale of Good Act of 1979[1] was enacted by the United Kingdom’s parliament in order to regulate commercial laws and contract laws in the country.  The Act regulates the entire contracts in regards to the sale and purchase of goods. The Act was a result of consolidation of the previous Sale of Good Acts of 1893[2] together with other legislations that were passed later. The Act stipulates the legal rules that should be followed in the transactions that involve contracts and the restrictions or limits that comes with these rules.  The Act lay down the rules that should apply in case of implied or presumed terms in regards to the sale contracts. If it happens that there is no agreement that has been made in a certain sale contract, then the provisions of the Act will apply but only within the limits of the Act. The Act provides legal certainty and efficiency which have made it to be adopted by most of the common wealth members.  Other countries such as US and Canada have different versions of the Act which have almost the same provisions.  This Act will apply in cases where two parties agree to transfer the ownership of the goods in exchange for monetary consideration. Section 2-15 of the contract provides implied terms which govern the sale contract. Some of the terms that are addressed include sale of goods to the minors, sale of perishable goods, price consideration, ownership rights and quality of goods that is being sold. Section 14 addresses the satisfactory quality of the goods that are sold and rules governing fitness of purpose of the goods sold. This paper will address a case where two companies Ethical company and the Electric Motors ltd differ in regards to the sales of goods contract as stipulated in the Sales of Goods Act of 1979.

    SALE CONTRACT

    Ethical company bought a new car from the electric motors ltd which was worth £ 15, 000 to be used by its directors for both business and private purposes. This company had made several similar purchases there before and it was not therefore the first deal with Electric Motors Ltd.  Electric motors ltd requires that all the customers who come to purchase motor vehicle in their company to agree by signing some standards terms that are in line with the Sale of Good Acts of 1979. In these standard terms the company limits its liability in regards to breaching of the terms implied in the section 13-15 of the Sale of Goods Act of 1979 to only £ 500. However, the sale of the car to the Ethical Company was made without physical visit but instead over the phone where Ethical Company never signed the stipulated standard terms.  A few days after the sale, the Ethical Company realised that the new car was defective which violated the terms of sales as they are laid down in section 14 of the Sale of Goods Act of 1979. The Ethical Company required at least £ 3000 in order to fix the problem.  The Electric motors ltd gives its customer an opportunity to buy a contract for service that will cover labour and parts of the car for a period of two years. However, the Ethical Company has not accepted this offer in the past.  Electric motors also happen to have paid at least one customer more than £500 limit when such an occurrence had happened in the past.

    LEGAL FACTS

    From the case, it is evident that these two companies have been trading in the past and therefore the two companies know their terms and conditions of trading. It is also evident that Ethical Company never signed the implied terms of contract as it is required by the company rules since the deal was transacted over the telephone.  The car which was sold by the Electric motor ltd was defective and it could cost more than £ 500 in order for Ethical Company to fix the problem. In addition, the Electric motor ltd has been accepting to go beyond their limit of £ 500 limit there before in order to fix such problem in the past though in just a few cases. Finally, it is evident that section 14 of Sale of Goods of 1979 was violated which requires that the goods that are being sold meet the satisfactory quality according to the expectations of the customer.

    LEGAL PRINCIPLES

    According to section 14(2), all the goods that are sold should meet the requirement of satisfactory quality.  The section continues to explain how satisfactory quality can be determined in order to tell whether the goods have met that quality. This quality is the quality that any person who is reasonable can term as satisfactory putting into consideration the descriptions of the good, its price and other factors that are relevant. The court has gone ahead to identify those factors that may lower or raise satisfactory expectation of the buyer.  For instance, goods which are second hand will have low expectation like in the case of Bernstien v. Pamson Motors Ltd,[3] while those goods that have brand with good reputation will have high satisfactory expectation.

    DISCUSSION

    According to the Sale of Goods and Act of 1979, Ethical Company is entitled to buy goods that are of satisfactory quality according to their expectations.  The car the company bought from Electric motors ltd was seriously defective and it did not meet the quality that was satisfactory according to the expectations of the customer. According to the provision of this sales Act, the Electric motors ltd had a legal obligation that required it to sell to its customers goods of quality standards according to the expectation of the customers. Though the Electric motors ltd required its customer to sign for some implied standard terms before purchasing the goods that did not mean that it could breach the legislations that require it to take full responsibility of the goods it sell to its customers. According to this Act, the seller of the goods has an obligation to inform the buyer about the conditions of the good before he or she purchase the goods. This obligation applies in all the sale contracts and not only in the United Kingdom but also in other countries. For instance in Norway, The Norwegian Sale contract[4] (clause 11, 87 and 93) requires the seller of the goods to bring to the attention of the buyer any defects in the goods according to his or her knowledge before sale. The seller is required by law to do a thorough inspection on the goods and inform the buyer before the buyer accepts the contract of buying the goods. This will help the buyer to make an informed decision and also know whether he or she would accept the terms and conditions of the contract. This legal requirement holds not only before the good is bought but even any other time before the good is delivered.

    In our case the Electric motors ltd has a legal obligation to notify their buyer (Ethical Company) any defect that was in the new car before selling the car to the company. This could have enabled the Ethical Company to know whether it could accept the terms of the contract or not. This means that the Electrical motors ltd breached their contract with the Ethical Company as it is provided in the sale of good acts of 1979. The Electric motors ltd had the obligation to have inspected their car before its sale in order to ensure that the car had met all the quality standards which could satisfy the buyer as required by the Sale of Goods Acts section 14(2). Again, if the car was seriously defective as the Ethical Company claimed, then it means that the defectiveness could have been detected by any reasonable person and not necessarily any expert in the area. This could imply that the Electric motors limited failed to identify the defect in the car because the car was not inspected. Thus the company can be said to have breached their implied terms as required by the Sale of Good Act of 1979.

    Even if the agreement between the two companies was reached over the phone and the Ethical Company never signed the terms for implied standards, the contract between the two parties is valid. According to the International Sale of Good Acts[5] article 26(2010, p. 6), unless it is otherwise expressly stated, a request or any other form of communication that is made or given by a party does not deny the other party the right to depend on the communication. This communication will be accepted as the formal communication and any contract that will result from this communication will be valid. This is a form of implied terms of contract which will be valid and applicable whether they were written or not.  The fact that the agreement was reached over the phone does not mean that the implied terms of standard by the Electric motor ltd does not hold. The fact that the Ethical Company did not sign this implied terms of standard does not mean they would not apply. The contract between the two companies was valid and failure to meet its implied terms of quality standard was a breach of the contract. Thus Electrical motor ltd was supposed to meet its obligations as required by the terms of contract. The legal case below which involves two companies will help to explain more the implied terms of quality standards as they are stipulated in the Sale of Act of 1979 section 14(2).

    KG Bominflot Bunkergesellschaft fűr Mineraloele mbH & Co v Petroplus Marketing AG (The Mercini

    Lady) [2010] EWCA Civ 1145

    The KG Borninflot is the plaintiff company in this case which sold gas oil cargo (FOB) to Petroplus sometime back. Though the inspector of loads at the port had found that the specifications of the ‘total sediment’ were within the limits of the contract, four days later the buyer(Petroplus) found that the cargo did not meet the standard test  and therefore  refused to accept the cargo from the KG Bominflot.  The case was filed in the commercial court where Bominflot claimed to be paid US$ 3 million by the Petroplus for the losses they incurred in the transportation of the cargo to the buyer premises. When making the ruling the commercial court judges applied the section 14 of the Sale of Goods Acts of 1979 and the common law[6] to rule that the claims of the plaintiff could not be granted.  According to the commercial court judges, the seller of the goods had an obligation to ensure that the goods meet the satisfactory quality not only during the time of inspection but even sometime later. When the case was appealed in the high court, it failed to succeed on the same legal grounds as they are provided by the 1979 Sale of Goods Acts.

    LEGAL ACTION

    According to In-store newspaper (2005, p. 27), the Sale of Goods Acts of 1979 clearly define any conditions that are required to be met when a customer realises that the goods that was sold to him or her are faulty or does not meet his expectation.  The buyer is entitled to replacement or refunds if he or she return the goods in reasonable time. The conditions for returns are also provided in the regulations of the supply and sale of goods which were amended in 2002[7].  This means that the Ethical Company has some rights to claim from the Electric motors ltd for two reasons. First, the Electrical motors ltd sold a defective car to the Ethical Company without making a reasonable inspection. Secondly, the law requires that any defective goods sold without knowledge of the seller to be replaced or the compensation paid to be refunded.

    In this case the Electrical motor ltd only compensates goods that are defective to a limit of £ 500 according to the company implied terms of standard. Though Ethical Company has always declined the offer for purchase services that cover labour and parts from the Electric motors ltd in the past, the Ethical Company is entitled to compensation that should cover the full repair of the defective parts. The Sale of Goods Act of 1979 gives Ethical Company legal rights to claim for compensation of any faulty goods that have been bought. The Ethical Company is entitled to goods that are of satisfactory quality according to the company’s expectation standards. Though the Act also places some responsibilities on the buyer, Ethical Company has traded there before with Electric motor ltd and therefore the company had all the trust on the quality of the car it was buying. Furthermore, the Electric motors ltd has also compensated such faults in the past even if they exceeded their contractual limit. Thus even Ethical Company was not an exceptional and is entitled to such compensation.

     

    CONCLUSION

    The Ethical Company is entitled to compensation that exceeds the limit of £ 500 which is provided in the implied terms of standard by Electric motors limited. Thus the company may take a legal action against the Electric motors ltd by filing a case in the court of law in order to claim full compensation for the breach of the contract.

     

    BIBLIOGRAPHY

    LEGAL ARTICLES

    Court of Appeal decision on implied terms as to quality in FOB sale contract. Retrieved on March 10, 2011.

    http://www.incelaw.com/documents/pdf/Strands/International-Trade/court-of-appeal-decision-on-implied-terms-as-

    Consumer Focus: Many happy returns . In – Store. London: May 2005. p. 25.
    Crookenden, Simon, 2008. Norwegian Sale Contracts: Implied Terms Of Satisfactory Quality And Fitness For Purpose And Right To Reject Delivery . Mondaq Business Briefing. Retrieved on March 10, 2011.

    http://www.highbeam.com/doc/1G1-190432222.html

    LEGAL ACTS

    INTERNATIONAL SALE OF GOODS ACT 2010

    SALE AND SUPPLY OF GOODS REGULATIONS 2002

    SALE OF GOOD ACTS 1893

    THE COMMON LAW

    THE SALE OF GOOD ACT 1979

    LEGAL CASES

    KG Bominflot Bunkergesellschaft fűr Mineraloele mbH & Co v Petroplus Marketing AG (The MerciniLady) [2010] EWCA Civ 1145

    Bernstein v Pamson Motors Ltd 1987 2 All ER 220

     


    [1] THE SALE OF GOOD ACT 1979

    [2] SALE OF GOOD ACTS 1893

     

    [3] Bernstein v Pamson Motors Ltd 1987 2 All ER 220

     

    [4] Crookenden, Simon, 2008. Norwegian Sale Contracts: Implied Terms Of Satisfactory Quality And Fitness For Purpose And Right To Reject Delivery

    [5] INTERNATIONAL SALE OF GOODS ACT 2010

     

    [7] SALE AND SUPPLY OF GOODS REGULATIONS 2002

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    CRIMINAL LAW

    Advise the parties as to whether they are committing any offences and what sentence would be appropriate ?……….

    INTRODUCTION

                The goal of the criminal laws is to punish those who have done wrong against the state. The state is mandated by the constitution to prosecute those citizens who commit crimes against the state on behalf of the queen. Criminal laws are applied in those crimes that committed by the suspects against the state. The goal of the civil laws is to compensate the one who is injured by the other party. In these cases an individual compensate another individual for the crime that has been committed against him or her. In the criminal law, the defendant is sentenced when found guilty in the court of law. Most of the crimes in civil law have two elements; Actus which represent the act of guilty or physical part of the crime and Mens Rea which represent guiltiness of the mind or mental part of the committed crime.

    LEGAL DISPUTES

                In this case study there are several crimes that are committed against the state. The first scenario is where Jack and Jill came from their house to go and witness a car crash as they were preparing to go town. On arriving at the scene of the crash, the two decided not to help the victims just because Jill could be frightened by the blood which could made her to faint. In the second scenario, Jack who is a police officer on part time basis, decided not to be involved when he found two prisoners fighting. In the process Jack who was on duty, was hit on the face when the punch from one prisoner missed the other prisoner. Out of this punch, Jack was bruised in his eye and his nose was broken and then started bleeding. On his way to hospital, Jack fall from the back of the ambulance when the door became loose. This worsened his conditions even as he arrived at the hospital. In the other scenario, Jill is frightened by receiving phone calls that are silent and she takes some drinks in order to calm her nerves. While still drunk, she takes her vehicle and started driving out of panic after hearing some noise in the house. The police stop her and charge her for driving while drunk. When Jack heard what has happened with Jill, he discharges himself from hospital and collapse on the way where he is seriously hit on his head leaving him in a coma.

    LEGAL FACTS

                In the first scenario, Jack and Jill refuses to help victims of the car crash claiming that Jill is afraid of the blood and she may risk fainting. In the second scenario, Jack though he was on duty as a police officer refuses to intervene in the case of two fighting prisoners. In the third scenario, Jill is caught driving while she was drunk and in the final scenario, Jack left the hospital without permission despite his critical health conditions when he heard what happened to Jill.

    DISCUSSION

                According to the common law, the Actus Reus can be looked into three perspectives; the act, state of the affair and when one fails to act. In the first scenario, Jack and Jill refused to act when they failed to assist the victims of the car crash. They had no responsibility to come in and help those who were in problem according to the interpretation of the actus reus. Actus reus is voluntary and Jack and Jill were not mandated to show duty of care by compulsion but it is voluntary and they could choose to help the victims of the car crash or not. They therefore decided not to help which was okay according to actus reus. However, there are exceptions to this voluntary nature of actus reus as discussed in the next scenarios. In the second scenario, Jack as police officer who was on duty was supposed to act and intervene in the case of the two fighting prisoners. Actus reus is voluntarily as we have seen in the case above where duty of care is not mandatory but there some exceptions to the duty of care where one is required to act. One of such exception is when one is required to act because of his or her official position. In this scenario, Jack’s position as the police officer required him to intervene in the case of the two fighting prisoners. He omitted to do his duty where he had duty of care to intervene and take the necessary action against the two fighting prisoners. This can be illustrated by the case of R v Dytham (1979) where a police officer who was on duty witnessed an attack which was violent to the victim but failed to intervene. The court found the officer guilty for failing to perform his duty in such circumstances. Jack can also file a case against the Ambulance driver for failing to act responsibly by ensuring that the ambulance door was properly locked which is a duty of care. There was law causation in that case where Jack can argue that his deteriorating illness was as a result of the ambulance incident. This can be illustrated by the case of R v Smith (1959), where a few soldiers who were assisting one of them who had been stabbed by one of the colleagues dropped the victim as they were taking him to hospital and on arriving at the hospital the victim was pronounced dead. All the soldiers who were assisting were found guilty for contributing to the death of the victim. Another similar case is that of R v Blaue (1975).

                The scenario where Jack had to leave hospital without permission when he heard what had happened to Jill can be termed as a case where causation chain is broken.  Jack is a victim of his own act and therefore responsible for his own action. He is guilty of his own collapse and therefore liable for sentence before the court of the law. The case of R v Roberts (1971) is a similar case where the claimant is the victim of his own act. In the scenario of Jill where she was caught driving while drunk, she can defend herself before the court law by proving to the court of law that her action of driving when drunk was as result of the silent calls she had received making her panic and loose her self control. She can use the case of R v Woolin (1998), where the defendant lost his temper and threw the baby on a hard surface arguing that she was frustrated by the cry of the baby.

    CONCLUSION

                If found guilty in all these scenarios, Jack and Jill will be punished different sentences for different scenarios as provided by the 2003 Act of criminal Justice(chap.12)

     REFERENCES

    Criminal Justice Act 2003

    Criminal_law_note.pdf 8192 kb Download R v Blaue [1975] 1 WLR 1411

    R v Woollin [1998] 4 All ER 103

    R v Roberts (1971) 56 Cr. App. R. 95

    R v Dytham (1979) QB 722

    R. v. Smith (Thomas Joseph) [1959] 2 QB 35, [1959]

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    Legal and Professional Responsibility in Obtaining Patient Consent

    What are the Legal and Professional Responsibility in Obtaining Patient Consent?

     

     

     

    INTRODUCTION

    Health care professionals have the responsibility of providing sufficient and relevant information to patients so that they obtain an informed consent from the patients before performing a medical procedure, (Crosbie, 2007). This paper is based on a case study of a patient’s consent before a surgical procedure. The responsibilities of nurses and doctors in informing patients and the legal aspects of patient consent have been described in this paper.

     

    The case study is that of a patient who signed consent forms and is scheduled for a mastectomy but thinks that the surgery is aimed at removing a small lump from her breast. The doctor after being informed by the nurse about the patient’s lack of knowledge on the procedure insists that the patient is fully aware. The consent form is not reviewed because the doctor does not need a delay of his surgery schedule. This is a case of a patient signing the consent form without sufficient information to aid her decision making.

    Consent involves a person in good mental capacity giving permission for a medical procedure to be performed on him or her.  The legal definition of consent states that every human being who is of sound mind and in adult years is entitled with a right to decide and determine what medical procedure is performed in his body. Therefore a surgeon who operates on a patient without his consent commits a crime, (Avery, 2009). In this case, the patient has signed consent forms but seems to be lacking knowledge of the actual procedure to be performed. This shows the importance of doctors’ role in having conversation and sufficiently explaining the details of a surgery before a patient makes the decision and giving consent.

    The three elements that must be present for consent to be valid are: The patient must be in the right mental capacity for him or her to give consent, relevant information must be supplied to the patient to assist him in decision making on whether to grant or withhold consent and finally, the patient must make the decision without coercion or persuasion (Patricia & Mary, 2007). The case study shows that sufficient information was not supplied to the patient otherwise she could have been aware that a mastectomy was to be performed and not mere removal of a small lump from her breast. Without all the three elements of consent, the signature of the patient on the consent form is invalid and subsequent medical procedures based on that consent would be unlawful. It is therefore crucial that medical professionals ensure that the consent patients provide is out of adequate understanding and by the patient’s own volition, (Cox, 2010).

    It is the responsibility of nurses to provide honest, impartial and accurate information to patients and other practitioners in matters relating to nursing care, (Australian Nursing and Midwifery Council, 2008). Health care professionals have the responsibility of informing patients before commencing any treatment or medical procedure. The information patients must be provided include the purpose of the procedure for example to remove a tumor or repair a fracture. Medical procedures where consent is absent must be limited to saving lives or preventing deterioration. Doctors have the responsibility of sufficiently informing patients as soon as they recover about the procedure performed on them and the reasons for the kind of therapy or treatment given to the patient, (Patricia & Mary, 2007).

    In medical law, consent plays an important role of protecting nurses and doctors in case of civil or criminal proceedings in a court of law. A patient who has the capacity to refuse consent allows no other factors for a doctor or a nurse to proceed with a medical procedure on the patient, (Avery, 2009). Health care professionals therefore respect the decisions of patients who withdraw consent to avoid civil prosecution or charges under the criminal law of assault. Moreover, the law of consent has a practical significance of encouraging the patient’s cooperation, trust and confidence in medical care, (Patricia & Mary, 2007). In the case study, the signing of the consent form by the patient may not protect the doctor fully because the patient was not sufficiently informed about the mastectomy before signing the consent form.

    All nurses must value the importance of informed decision making in medical care, (Australian Nursing and Midwifery Council, 2008). Consent gives the patient the right to determine what is done to his body after evaluating the information given to him about his condition. The patient may withdraw consent hence refuse treatment even if the outcome of not receiving the treatment is detrimental or may result to death, but for such consent to be valid in the provisions of law, the patient must have the capability of making that decision, (Crosbie, 2007). The patient in the case study has the right to withdraw consent even if the consequences of not performing the mastectomy would be detrimental.

    The patient in this case study may have been given information but it could have been irrelevant in aiding decision making or the patient did not retain the information the doctor gave her. Medical professionals have the responsibility of ensuring that the patient understands and retains the relevant information about his medical condition to enable him reach the right decision before giving consent. In addition, the patient must believe the information and weigh it before reaching a decision without any duress, (Cox, 2010).

    The Health Practitioner Regulation in Australia provides for mandatory reporting of obligations to the national agency of medical practitioners. The regulation ensures that professional standards such as the Code of Professional Conduct for Nurses in Australia (ANMC) and the Code of Ethics for Nurses in Australia are followed by all medical professionals, (Gardner & Della, 2009, p 679). The consequence of not adhering to patient consent decisions may result to disciplinary action against the medical professional by a medical regulatory body.

    According to the Australian law, treatment without consent means that he patient has been assaulted. Medical practitioners may be charged with civil or criminal assault if they treat patients without consent.  The law also provides for legal suit of battery when consent is overlooked in medical practice. Consent can be written, verbal or implied but doctors have an obligation to inform patients of all risks and benefits of a medical procedure before the patient gives consent, (Edwards, 2010, p 15). The patient may appear to have given implied consent by attending a medical procedure but it is the responsibility of the practice nurse to ensure that the patient is fully informed to enable a formal consent to be obtained. Sometimes it becomes necessary to defer a procedure or therapy until informed consent can be obtained from the patient. This is because illness and instances of stress may influence the ability of the patient in making a rational decision, (Patricia & Mary, 2007)

    In surgical procedures it is the responsibility of the doctor who will perform the operation to have the consent conversation with the patient. The responsibility of a surgical nurse is to act as a witness but does not have to be present during the consent conversation, (Patricia & Mary, 2007). In the case study, the doctor is held responsible for giving accurate and sufficient information. Since the patient thought a mastectomy is the removal of a small lump from her breast, it means that the doctor did not provide her with accurate information about the surgical procedure. This is likely to result into legal suit by the patient but a problem may arise because the patient has already signed the consent form.  The role of the nurse as a witness it to prove that the patient is competent, had a conversation with the doctor and signed the consent forms.

    The consent forms should have the name of the doctor who is performing the surgery as well as the names of the assisting physicians to prove that the surgery was actually done, (Edwards, 2010). Sine patients may undergo more than one procedure in a single day, consent forms must be signed for every procedure. The referring doctor has the responsibility to participate in the recommended procedure by giving all relevant information to aid decisions of patients. This is important because the referring physician may be named in a lawsuit, along with the doctor who actually performs the procedure, (Avery, 2009).

    Consent forms are used by attorneys to build a defense in cases of alleged lack of informed consent. The language used to describe the procedure in the consent forms should be simple. An interpreter may be necessary to enable the patient understand the procedure before signing the consent forms, (Gardner & Della, 2009). In the case study, the patient may have had difficult understanding the procedure especially if the consent form had medical language such as mastectomy that the patient did not understand hence signing the form without sufficient information. Doctors should explain the details of a surgical procedure to their patients instead of letting them read the form by themselves. Interpreters could have been used if the patient did not understand what the doctor was explaining to her.

    Doctors also are responsible for communicating the information on the procedure to the family and relatives of the patient especially for pediatric patients. Young children do not have the mental capacity to make decisions on a medical procedure to be performed on them hence the law provides for their parents to make informed decisions on their behalf. To indicate that he was present to have a conversation with the parents of a pediatric patient, the physician who is to perform the procedure should sign the consent form, (Cox, 2010).The signature of the child’s parent eliminates a claim for a lawsuit. The relation of the person who signs the consent form for a pediatric patient should be indicated. Finally the consent forms should have the dates when it was signed and a copy of the form preserved in the medical records for defense in case of a lawsuit.

     

    CONCLUSION

    Health care providers should use their communication skills effectively so that the patient does not get the wrong impression on the procedure which can lead to consent based on misunderstanding. The case study shows poor communication between the patient and the doctor which resulted to the patient signing the consent form without sufficient information of the actual procedure to be performed on her. Medical law provides regulations to be followed by health care providers in treating patients so that they would avoid civil or criminal suit for assault or
    battery. The medical and nursing agencies such as the Australian Nursing and Midwifery Council provides a set of standards that provides for ethical and legal considerations in provision of medical care.

     

    REFERENCES

    Australian Nursing and Midwifery Council (2008), Code of Professional Conduct for Nurses in

    Australia, ANMC, Canberra, March 2008

    Avery, G. (2009). Consent and the Incompetent Adult: A prescribing dilemma. Practice Nurse,

    38(6), 35-35-38

    Cox, C. (2010), Legal responsibility and accountability, Nursing Management, 17(3), 18-18-20

    Crosbie, Susan, (2007), Consent in Practice: A Case Review. Paediatric Nursing; Jun2007, Vol.

    19 Issue 5, p34-36, 3p

    Edwards, M. (2010), An Introduction to Consent. Practice Nurse, 39(6), 13-13-15

    Gardner, A., & Della, P. R. (2009), The Status of Australian Nurse Practitioners. Australian

    Health Review, 33(4), 679-679-89.

    Patricia Staunton & Mary Chiarella, (2007), Nursing and the Law, Elsevier, Chapter 4, 6th Ed

     

     

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