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Clinical Guidelines and the Law of Medical Negligence
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Clinical Guidelines and the Law of Medical Negligence

Multidisciplinary and International Perspectives

9781789908886 Edward Elgar Publishing
Edited by Jo Samanta, Emeritus Professor, Law School, De Montfort University, Leicester and Ash Samanta, Emeritus Consultant Physician and Rheumatologist, University Hospitals of Leicester and Lecturer in Medical Law, Law School, De Montfort University, Leicester, UK
Publication Date: 2021 ISBN: 978 1 78990 888 6 Extent: 368 pp
This book critically considers the dynamic relationship between clinical guidelines and medical negligence litigation, arguing that a balance must be struck between blinkered reliance on guidelines and casual disregard. It explores connections between academic law and professional practice, bringing together an array of perspectives which reveal that although guidelines may not be dispositive, they nonetheless play an important role in medical negligence law.

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Critical Acclaim
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This book critically considers the dynamic relationship between clinical guidelines and medical negligence litigation, arguing that a balance must be struck between blinkered reliance on guidelines and casual disregard. It explores connections between academic law and professional practice, bringing together an array of perspectives which reveal that although guidelines may not be dispositive, they nonetheless play an important role in medical negligence law.

The chapters provide compelling insights from academics, lawyers, barristers, doctors and healthcare professionals into the use of guidelines in determining the legal standard for breach of duty, thereby contributing to a holistic understanding of guideline usage in this area of law. Sociological considerations along with empirical findings are used to underpin these concepts. While focusing on the UK, contributors draw upon international law including that from the United States, South Africa, the Netherlands and other countries. Based on this analysis the conclusion offers a theoretical framework for practical application illustrated by a case-based discourse.

This book makes a significant contribution to the knowledge base in the subject area. It is an essential read for legal academics and lawyers working in medical and health law, as well as for doctors and other healthcare professionals. It will be a key reference point for medical regulators, health organisation policymakers and clinical governance teams.
Critical Acclaim
‘The most detailed and rich consideration of the legal status of national and local clinical guidelines available. The volume tackles fundamental legal and ethical questions, concerning the role of healthcare instruments which claim a basis in robust development processes and scientific data: do guidelines legitimately underpin ‘guidance’ or ‘instructions’; how do – and should – they influence courts, in differing jurisdictions, when deciding legal standards of care; and what are the legal implications of practitioners’ adhering to, or departing from, clinical guidelines? In keeping with a governance tool that has ramified throughout the medical world, the editors, Jo and Ash Samanta, recognise the extraordinary global reach of guidelines and have assembled an array of international scholars and legal and medical analysts, to critically interrogate this trans-national legal nexus. Teeming with analysis of the key legal principles and cases, this collection offers the most expansive and authoritative treatment of the subject.’
– Brian Hurwitz, King’s College London, UK

‘This is a timely collection, written by experts in the field, that provides real insight into legal and ethical issues around clinical guidelines and the law of negligence. The book succeeds in its aim of bringing together different perspectives to create an overview where previously there were discrete and narrow silos of research. I can thoroughly recommend it.’
– Jose Miola, University of Leeds, UK
Contributors
Contributors: Simon Britten, Debashish Dutta, Marwan Habiba, Rob Heywood, Friso Johannes Jansen, Rebecca Parrott, Camilla Pickles, Pritesh Rathod, Ash Samanta, Jo Samanta, Laurence Vick
Contents
Contents:

Foreword x
Preface xii

Introduction: clinical guidelines and the law of medical negligence 1
Ash Samanta and Jo Samanta
1 The early usage of clinical guidelines in medical
negligence litigation: an Anglo-American perspective 12
Ash Samanta and Jo Samanta
2 Reliance on clinical guidelines in contemporary negligence
litigation in the UK: influential or determinative? 52
Rob Heywood
3 Medical guidelines in South African courts: exploring their
role in medical negligence matters 80
Camilla Pickles
4 Fitness to practice tribunals in the UK and the Netherlands:
the construction of (para)medical competence and the use
of evidence-based guidelines 112
Friso Johannes Jansen
5 The interface between clinical guidelines and health care ethics 143
Marwan Habiba
6 A barrister’s experience of the use of clinical guidelines in
clinical negligence litigation 175
Pritesh Rathod
7 The role of guidelines and protocols in clinical negligence
litigation: a solicitor’s viewpoint 199
Laurence Vick
8 Evidence-based medicine, clinical guidelines,
trustworthiness and safe care in anaesthetics 228
Rebecca Parrott and Debashish Dutta
9 Clinical guidelines in trauma and orthopaedic surgery 252
Simon Britten
10 A global perspective of the use of clinical guidelines in
medical negligence litigation 281
Jo Samanta and Ash Samanta
Conclusion: clinical guidelines and the law of medical negligence 322
Ash Samanta and Jo Samanta

Index 341
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